Kariuki v Kangathi (Enviromental and Land Originating Summons E025 of 2024) [2025] KEELC 8009 (KLR)
The bottom line
#A Kenyan land buyer who paid most of the price and occupied the land for 20 years won 0.4 acres after the court applied a constructive trust to enforce the sale.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired title by adverse possession
The adverse possession claim failed because the Defendant is not the registered owner of the suit land as required by Section 38(1) of the Limitation of Actions Act.
Section 38(1) of the Limitation of Actions Act allows a person claiming to have become entitled by adverse possession to apply for registration in place of the person then registered as proprietor. Since the registered owner is the deceased Ngugi Mukabi/Mukumbi and not the Defendant, the claim as framed could not succeed against the Defendant.
Whether the Plaintiff is entitled to the land on equitable grounds despite the failure of the adverse possession claim
Yes. By taking the Plaintiff's money and putting him in possession, the Defendant created a constructive trust in favour of the Plaintiff, which binds the title of the registered owner under Section 28(b) of the Land Registration Act.
Relying on Willy Kimutai Kitilit v Michael Kibett, the court held that putting a buyer in possession creates a constructive trust that overrides the Land Control Act. The Defendant took the Plaintiff's money and put him in possession of 0.5 acres, so he cannot resile from the sale; the registered owner's title is subject to that trust.
Whether the Plaintiff paid the full purchase price and the extent of his entitlement
Only Kshs. 73,000/= of the Kshs. 90,000/= purchase price was proved; the Plaintiff's entitlement was prorated to 0.4 acres.
The breakdown of 28 payments from 12-9-2004 to 6-5-2006 totalled Kshs. 73,000/=, which the court found proved. Since the full price was not proved as paid, the court apportioned the 0.5 acres in the ratio of the amount paid to the agreed price, yielding 0.405, rounded to 0.4 acres.
Credibility of the Defendant's testimony
The Defendant had little or no credibility; his affidavit asserting exclusive occupation by his family was contradicted by his own cross-examination admitting the Plaintiff's occupation.
In his replying affidavit the Defendant denied the Plaintiff's possession of over 12 years, claiming his children and he exclusively utilized the whole land. Under cross-examination he admitted he sold the land, allowed the Plaintiff to occupy it, and that the Plaintiff was still in occupation. His affidavit evidence was uncorroborated and disproof by the Plaintiff's corroborated evidence led the court to prefer the Plaintiff's account.
Legal principles established
#- Where a seller of land puts the buyer in possession, the seller creates a constructive trust in favour of the buyer, and equitable doctrines of constructive trust and proprietary estoppel override the Land Control Act.
- An adverse possession claim under Section 38(1) of the Limitation of Actions Act can only be brought against the person registered as proprietor of the land.
- Where the buyer has paid only part of the purchase price and is in possession, entitlement to the land is prorated to the amount paid.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant for 0.4 acres of the suit land
- 2.The Land Registrar Murang'a to excise the said 0.4 acres from the suit land and register the same in the name of the Plaintiff
- 3.The Deputy Registrar of the Court to execute all the necessary instruments to effect the transfer of 0.4 acres to the Plaintiff
- 4.If the Defendant does not cooperate, the Land Registrar to effect registration of the 0.4 acres notwithstanding any hindrance by the Defendant
- 5.Costs to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction over land claims; reliefs sought under Section 38(1) of the Limitation of Actions Act and equitable doctrines of constructive trust and proprietary estoppel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Kangathi (Enviromental and Land Originating Summons E025 of 2024) [2025] KEELC 8009 (KLR)", Case Analysis (2025). Originating Summons dated 3-12-2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8009/eng@2025-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.