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ELCDismissedEnvironment and Land Court Land Appeal No. E026 of 2025

Okinyi v Ogallo & another (Environment and Land Appeal E026 of 2025) [2026] KEELC 3310 (KLR)

Environment and Land Court of Kenya
28 April 2026
7,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A 2005 land buyer without a title transfer still won in Kenya's Environment and Land Court, which ruled equity beats a missing Land Control Board consent.

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 at Homa Bay against the judgment and decree of Hon. Martha Agutu (PM) in Mbita PMELCC 21 of 2020, delivered on 10 July 2025. In the trial court the appellant, as son and administrator ad litem of the late Siriakus Okinyi Onyango, sued for a permanent injunction and damages for trespass over land parcel Kaksingri/K/Waregi/2322, a subdivision of parcel 632 registered in the deceased's name. The 1st respondent denied trespass, asserting occupation since 2008 under the 2nd respondent, who counterclaimed as an interested party that he had purchased 1.5 acres from the deceased in 2005 for Kshs. 18,000/- and sought cancellation of the posthumously created title and registration of the land in his name. The trial court dismissed the claim and allowed the counterclaim, declaring the interested party owner of 1.5 acres, issuing a permanent injunction against the plaintiffs, and ordering registration of the land in his name, with costs. On appeal the appellant raised four condensed issues: proof of the counterclaim, constructive trust, validity of the sale absent Land Control Board consent, and costs awarded to the interested party. The court applied the settled first-appeal duty of re-evaluation, held that the forgery allegation was unproven, adopted the Supreme Court's and Court of Appeal's jurisprudence on constructive trusts, and held that equity as a constitutional principle under Article 10(2)(b) supersedes the Land Control Act. The costs award was held a proper judicial discretion. The appeal was dismissed in its entirety with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the defendant had proved the counterclaim
  2. 2.Whether the trial court erred in finding that there was a constructive trust
  3. 3.Whether the trial court erred in finding that there was a valid sale agreement despite the absence of a Land Control Board Consent
  4. 4.Whether the trial court erred in awarding costs to the interested party

Key legal issues

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01

Whether the interested party proved his counterclaim of purchase of the suit land

Holding

Yes - the interested party proved he purchased the suit land from the deceased in 2005; the appellant failed to prove forgery.

Reasoning

Applying Sections 107, 109 and 112 of the Evidence Act and the balance of probabilities standard, the court held the appellant bore the burden of proving his forgery allegation. Having tendered no proof of forgery, he could not rebut the interested party's evidence of the 2005 purchase evidenced by the sale agreement.

p. 29
02

Whether the trial court erred in finding a constructive trust

Holding

No - the constructive trust was properly found in favour of the purchaser.

Reasoning

Relying on the Supreme Court's decision in Shah & 7 others v Mombasa Bricks & Tiles Ltd and Willy Kimutai Kitilit v Michael Kibet, the court held that a constructive trust arises where a purchaser pays the consideration and changes position to his detriment. The seller's failure to transfer could not deprive the buyer of the land; it was the seller's duty to facilitate Land Control Board consent.

p. 32
03

Whether the absence of Land Control Board consent invalidated the sale agreement

Holding

No - the constructive trust superseded the Land Control Act's invalidating provision.

Reasoning

The court adopted the Court of Appeal's holding in Willy Kimutai Kitilit that the equitable doctrines of constructive trust and proprietary estoppel, elevated by Article 10(2)(b) of the Constitution, apply to and supersede the Land Control Act where a controlled transaction is void for lack of consent, especially where the seller unreasonably delayed performing the contract.

p. 36
04

Whether the trial court erred in awarding costs to the interested party

Holding

No - costs are discretionary, follow the event, and the appellant gave no sufficient reason to interfere.

Reasoning

Section 27(1) of the Civil Procedure Act vests costs in the court's discretion, to be exercised judiciously. Citing Halsbury's Laws of England, the court held it seldom interferes with a judicial exercise of discretion on appeal and found no sufficient reason to disturb the award.

p. 37

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence and reach its own independent conclusions.
  • The standard of proof in civil claims is the balance of probabilities.
  • Allegations of forgery require proof beyond a mere allegation.
  • A constructive trust may be imported into a land sale agreement to defeat a registered title, and equitable doctrines supersede the Land Control Act where a transaction is void for lack of consent.
  • Where the seller purchased, paid and settled on the land, the vendor holds under a constructive trust and cannot rely on failure to transfer.
  • Costs follow the event and the award of costs is a judicial discretion rarely interfered with on appeal.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court at Mbita (PMELCC)
Mbita PMELCC 21 of 2020
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment and decree (Environment and Land Court Act)

Relief refused

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The entire appeal (all six grounds in the Memorandum of Appeal)

The court found the interested party proved the 2005 purchase, the constructive trust was properly applied, lack of Land Control Board consent did not invalidate the sale, and the costs award was a proper exercise of discretion

p. 37

Costs

Appeal dismissed in its entirety with costs to the Respondents; the trial court's award of costs to the defendant and the interested party left undisturbed.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the Appeal is dismissed in its entirety with costs to the Respondents.
p. 37disposition
Judgment dated, signed and delivered virtually via the Teams Platform this 28th day of April 2026.
p. 37delivery of judgment
It is therefore my considered view that the interested party proved that he had indeed purchased the suit land in the year 2005.
p. 29proof of purchase
given the establishment of a constructive trust, the sale could not be invalidated on the basis of being a controlled transaction
p. 36constructive trust and Land Control Act
The seller had a constructive trust created in favour of the buyer.
p. 32constructive trust
the equitable doctrines of constructive trust and proprietary estoppel are applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board
p. 35equity superseding Land Control Act

Issues in the judgment

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minor

The judgment states the interested party produced a sale agreement dated 5th October 2025, which is inconsistent with the pleaded and testified purchase date of 2005 and the date of the judgment itself; elsewhere the agreement is referred to as dated 5th May 2005.

minor

The judgment repeatedly quotes the Kitilit passage as 'void and enforceable' where the original formulation would read 'void and unenforceable', an internal textual inconsistency in the quoted excerpt.

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, "Okinyi v Ogallo & another (Environment and Land Appeal E026 of 2025) [2026] KEELC 3310 (KLR)", Case Analysis (2026). Environment and Land Court Land Appeal No. E026 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3310/eng@2026-04-28

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