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ELCPartially AllowedNot stated (Appeal from Ukwala SRM ELC Case No. E015 of 2022)· [2026] KEELC 1047 (KLR)

Tarko & another v Okello (Appeal E036 of 2024) [2026] KEELC 1047 (KLR)

Environment and Land Court
24 February 2026
5,034 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court cancelled a land buyer's title because her paperwork was flawed, recognizing the Tarko family's long-standing ownership through a constructive trust.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against the judgment of Hon. E. Tsimonjero (SRM) in Ukwala ELC Case No. E015 of 2024, in which the respondent, Vivian Anyango Okello, had been declared the lawful registered owner of South Ugenya/IIRO/2594 following a 2021 transaction with John Otieno Ratanga. The appellants, Beatrice Awino Tarko and George Otieno Tarko, contended that their father Lucas Tarko Mbala had purchased the same land from Ratanga in 1993–1995, taken possession, and that Ratanga held the title in trust for their family. They also lodged a counterclaim seeking cancellation of the respondent's title. The court, as a first appellate court, reassessed the entire record. It found that the respondent's acknowledgement note was neither signed by her nor by the vendor, that no Power of Attorney supported the mother's execution, and that the transfer documents were never produced, leaving unexplained gaps amounting to procedural illegality under section 26(1) of the Land Registration Act. The court further held that section 3(3) of the Law of Contract Act, applied in error by the trial court to the appellants' pre-2003 agreement, did not govern that transaction. Drawing on the Supreme Court's decision in Shah v Mombasa Bricks & Tiles, it found Ratanga's conduct unconscionable and imposed a constructive trust in favour of the estate of Lucas Tarko Mbala. The appeal was allowed, the trial judgment set aside, the respondent's claim dismissed, the counterclaim upheld, the respondent's title cancelled and substituted with the deceased's name. Each party was ordered to bear their own costs.

Key legal issues

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01

Validity of the Plaintiff's land sale agreement and title

Holding

The acknowledgement note was not signed by the purchaser or the vendor, the transfer documents were never produced, and the title was therefore procured unprocedurally; the trial court erred in upholding the Plaintiff as lawful owner.

Reasoning

Section 3(3) of the Law of Contract Act applied to the 2021 transaction, which was executed after 2003. The acknowledgement note was executed only by the vendor's witness, with no Power of Attorney under section 48 of the Land Registration Act authorising her. The transfer documents listed were never produced in evidence, leaving unexplained gaps in how title issued.

p. 6
02

Applicability of section 3(3) of the Law of Contract Act to the Defendants' pre-2003 agreement

Holding

The Tarko–Ratanga agreement of 1993–1995 predates section 3(3) and the trial court erred in applying that provision to invalidate it.

Reasoning

The trial court had found the Defendants' agreement invalid for non-compliance with section 3(3). On a first appeal the court reassessed the evidence and found the arrangements occurred around 1993–1995, before section 3(3) came into effect in 2003, relying on Peter Mbiri Michuki v Samuel Mugo Michuki.

p. 5
03

Whether a constructive trust arose in favour of the Tarko family

Holding

A constructive trust was created; Ratanga received payment, allowed the Tarko family possession for about 27 years, and his conduct was unconscionable.

Reasoning

Relying on Twalib Hatayan and the Supreme Court's decision in Shah v Mombasa Bricks & Tiles, trusts are overriding interests under section 28 of the Land Registration Act capable of defeating registered title. Ratanga admitted receiving payment and the family's long possession; equity therefore intervened to impose a constructive trust in favour of the estate of Lucas Tarko Mbala.

p. 9

Legal principles established

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  • Section 3(3) of the Law of Contract Act does not apply to contracts for the disposition of land entered into before it came into effect in 2003
  • A certificate of title may be impeached where it was acquired illegally, unprocedurally or through a corrupt scheme, and unexplained gaps in the conveyance process suffice to raise that inference
  • A constructive trust can be imposed to defeat a registered title where it would be unconscionable for the legal owner to retain the property

Court orders

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  1. 1.The appeal succeeds and is allowed
  2. 2.The Judgment and Decree in CMC ELC E015 of 2022 at Ukwala is set aside and substituted with the order dismissing the Plaintiff's claim
  3. 3.The Counterclaim in the trial court is upheld and judgment entered for the 1st and 2nd Defendants as Plaintiffs in the Counterclaim
  4. 4.An order for the cancellation of the title issued to Vivian Anyango Okello in September 2021, substituting the same with the name of Lucus Tarko Mbala (Deceased) by the Land Registrar Ukwala
  5. 5.No orders as to costs on both the trial court proceedings and the appeal; each party to bear their own costs
On appeal from
Ukwala Senior Resident Magistrate's Court
ELC Case No. E015 of 2022
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Senior Resident Magistrate's Court (Memorandum of Appeal dated 9/10/2025)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tarko & another v Okello (Appeal E036 of 2024) [2026] KEELC 1047 (KLR)", Case Analysis (2026). Not stated (Appeal from Ukwala SRM ELC Case No. E015 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1047/eng@2026-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.