Ogeto v Morumbwa & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a constructive trust arose in favour of the Appellant
Yes - full payment of the purchase price, delivery of possession and common intention gave rise to a constructive trust making the 1st Respondent a trustee
The court found it undisputed that the Appellant entered a sale agreement, paid Kshs.1,100,000 in full, took possession and developed the land. The 1st Respondent acknowledged receipt of payments and could not fault the agreement's validity while continuing to receive payments and giving possession. Relying on Macharia Mwangi Maina v Kagiri, Shah v Mombasa Bricks and the proviso to section 3(3), the court held a constructive trust arose.
Whether the 2nd and 3rd Respondents were bona fide purchasers for value without notice
No - they had notice of the Appellant's interest and occupation and failed the Katende elements
Having found a constructive trust constituting an overriding interest under section 28(b) of the Land Registration Act, the court held the 2nd and 3rd Respondents were aware of the Appellant's occupation and claim, including the criminal case against the 1st Respondent. They failed to conduct due diligence on occupation and did not meet the Katende v Haridar elements, so could not rely on the bona fide purchaser doctrine.
Whether the trial magistrate properly applied section 3(3) of the Law of Contract Act
No - the magistrate overlooked the proviso preserving resulting, implied and constructive trusts
The court reproduced section 3(3) and held the trial magistrate erred in treating the writing requirement as defeating the equitable claim, since the proviso expressly excludes resulting, implied or constructive trusts from the subsection. The evidence of full payment and possession gave rise to such a trust, which is an overriding interest under section 28(b).
Legal principles established
#- Where a purchaser pays the full purchase price and is given possession, the vendor becomes a constructive trustee pending transfer, notwithstanding doubts about the formality of the agreement
- Section 3(3) of the Law of Contract Act expressly does not affect the creation of a resulting, implied or constructive trust, so such a trust may defeat a plea of non-compliance with the writing requirement
- A constructive trust is an overriding interest under Section 28(b) of the Land Registration Act and binds subsequent purchasers with notice
- A purchaser must conduct due diligence on the root of title, including occupation, and cannot be a bona fide purchaser without notice where aware of a pending claim
Court orders
#- 1.A declaration that the Appellant is the beneficial and legal owner of Njoro/Ngata Block 2/4636 (Kirobon A) and the Respondents jointly and severally are permanently restrained from interfering with his quiet possession
- 2.An order that the 1st Respondent held the title for the benefit of the Appellant and the purported sale and transfer to the 2nd and 3rd Respondents is null and void and is cancelled
- 3.The Deputy Registrar to sign the transfer forms and any other necessary forms to facilitate transfer of the suit property to the Appellant within 14 days
- 4.Costs of the suit and the Appeal to the Appellant
- On appeal from
- Chief Magistrate's Court at Nakuru (ELC)
- Nakuru CM ELC No. 48 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's court under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogeto v Morumbwa & 2 others", Case Analysis (2026). Environment and Land Appeal E025 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.