Makau & another v Nzioka (Environment and Land Case E002 of 2022) [2025] KEELC 7368 (KLR)
The bottom line
#A Machakos court confirmed that paying for land, taking possession and developing it can defeat a registered owner's title through a constructive trust.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of the 2nd Plaintiff's registered title
The 2nd Plaintiff is the registered proprietor, but her title is subject to overriding interests including constructive trusts
The court applied Sections 24(a) and 26(1) of the Land Registration Act confirming the 2nd Plaintiff as registered owner, but noted, following the Supreme Court in Arvind Shah, that registration is subject to overriding interests under Section 28, including trusts. The Defendant's full payment, possession and development since 2018 gave rise to a constructive trust limiting the registered title.
Whether the Plaintiffs proved fraud, coercion or undue influence
No fraud or coercion was proved; the 2nd Plaintiff willingly entered the sale agreements with family witnesses
The 1st Plaintiff alleged fraud, coercion, undue influence and taking advantage of illiteracy, but produced no proof. PW2 and PW3 admitted selling the land and receiving the purchase price. Applying Sections 107-109 of the Evidence Act, the burden lay on the Plaintiffs, who failed to discharge it on a balance of probabilities.
Validity of the sale agreements under Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act
The written, signed and witnessed sale agreements satisfied the statutory formalities and were enforceable
Three sale agreements (2018-2021) were in writing, signed by the parties and witnessed, satisfying the statutory requirements. Applying general contract-formation principles from Garvey v Richards and RTS Flexible Systems, the court found an intention to create legal relations, certainty of subject matter and consideration, establishing the Defendant's beneficial interest.
Bona fide purchaser status of the Defendant
The Defendant did due diligence including an official search showing the 2nd Plaintiff as sole registered owner, and lawfully purchased
The Defendant procured a certificate of search dated 8th October 2018 confirming the 2nd Plaintiff as sole registered owner, entered into successive written agreements, paid the full purchase price, obtained NEMA and business licences after public participation, and constructed permanent buildings. She was therefore a bona fide purchaser for value in peaceful possession.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership in that person
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation or illegal/unprocedural/corrupt acquisition
- A contract for disposition of an interest in land must be in writing, signed by all parties and attested by a witness
- The party asserting a fact bears the burden of proving it
- A constructive trust can be imported into a land sale agreement to defeat a registered title
- A party who pays the full purchase price, takes possession and develops land acquires a beneficial interest that the registered proprietor may not disavow
Court orders
#- 1.The Plaintiffs' suit is dismissed with costs
- 2.An Order compelling the 2nd Plaintiff to transfer land measuring approximately 100 x 100 feet and 50 x 100 feet to be excised from Land Reference Number Machakos/Nguluni/2949 to the Defendant within 60 (sixty) days from the date of service of the Order
- 3.An Order directing the County Surveyor Machakos County to excise an access road on Land Reference Number Machakos/Nguluni/2949 to the Defendant's land
- 4.Costs of the Suit to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title and ownership of land (Articles 162(2)(b) and 165(5) constitutional framework; dispute concerning L.R. Machakos/Nguluni/2949)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau & another v Nzioka (Environment and Land Case E002 of 2022) [2025] KEELC 7368 (KLR)", Case Analysis (2025). Environment and Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7368/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.