Muhuthu v Nyokabi (Sued as a Legal Representative of the Estate Of Peter Kariuki Kahumbu - Deceased) (Enviromental and Land Originating Summons E008 of 2025) [2026] KEELC 3702 (KLR)

seller was Peter Kariuki Kahumbu the husband of the Defendant. Secondly, the late Michael Muhuthu took possession of the suit land together with his wife the Plaintifi and they settled thereon. They have been living on the land where they have built a permanent house among other developments. Secondly, the later Peter Kariuki Kahumbu died before he could transfer the suit land to the Plaintifi’s husband. Three, the Defendant is the wife and legal representative of the estate of her late husband and she is reluctant to transfer the suit land to the Plaintifi making the filing of this suit necessary. 3. In support of her case, the Plaintifi filed the following evidence. a. Supporting afidavit dated 6-3-2025. b. Copy of grant of letters of administration and copy of certificate of grant issued in Kandara Magistrates’ Court Succession Cause No. E038/2022. c. Copy of certificate of oficial search for parcel No. Ithanga Phase IV/Settlement Scheme/448 dated 7-3-2024. d. Six (6) photographs showing houses, mango trees, cassava plants, banana stools an Napier grass growing on some land. e. Copy of limited grant issued in Succession Misc. Case No. E030/2024 at SRM’S Court at Kenol dated 24-6-2024. f. A copy of sale agreement and 3 acknowledgment of receipt of purchase price by Peter Kariuki Kahumbu from Michael Muhuthu Mwangi. g. Letter by Chief Ithanga dated 27-3-2023. 4. The summons is opposed by the Defendant who has sworn a replying afidavit which is dated 3-6-2024 and in which she replies as follows. One, the dispute over the suit land was primarily between Michael Muhuthu Mwangi and Peter Kariuki Kahumbu during their lifetime. After the original parties died, the current parties took over the dispute. The Plaintifi’s claim is based on misrepresentation. Two, at Thika Civil Suit No. 395 of 2004, the dispute was determined on merit in favour of Peter Kariuki Kahumbu as per the judgment dated 10-12-2018. The order dated 17-4-2012 attached to the Plaintifis’ documents is a forgery. Three, the occupation of the suit land by the Plaintifi and her husband has been interrupted by litigation and the claim for adverse possession cannot succeed dating back to 2004. For the above and other reasons, the Defendant prays for the dismissal of the Plaintifis’ suit. 5. In support of her case, the Defendant filed the following evidence. i. Replying afidavit dated 3-6-2024. ii. Copy of judgment dated 10-12-2018 issued in Thika Civil Case No. 395/2004. iii. Witness statement dated 27-1-2026. iv. Copy of title deed for L.R. Ithanga Phase IV dated 7-11-1995. v. Copy of order dated 2-4-2012. 6. At the trial on 22-4-2026, the Plaintifi testified on oath and reiterated her case as per paragraph [2] above. The Defendant did the same and repeated what is in her pleadings. 7. I have carefully considered all the evidence adduced in this case by both sides including the afidavits, the documents and the witness statements. I find that the following issues arise i. Whether the Plaintifi and her husband have occupied the suit land since purchase before 1992. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3702/eng@2026-06-18 2

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ii. Whether the occupation has been without force, without permission from the deceased or his heirs and as of right. iii. Whether Thika CM’s Court case No. 395/2004 ever dealt with the issue of adverse possession. iv. Whether the Plaintifi is entitled to the suit land by operation of any other law beside the doctrine of adverse possession. 8. On the first issue, I find that the Plaintifi and her husband occupied the land in the year 1992 or before. The pleadings and the evidence on record do not state the date of the sale agreement between Michael Mahuthu Mwangi and Peter Kariuki Kahumbu. The earliest acknowledgement of part payment of the purchase price is dated 16-6-1992. I believe that the Defendant’s husband received various amounts of money from the Plaintifi’s husband. The Plaintifi’s husband was buying the suit land. In addition to the evidence of payment of the purchase price, there evidence of houses on the suit land and cultivation by the Plaintifi. 9. Regarding the second issue, I find that the original entry was with the permission of the registered owner, Peter Kariuki Kahumbu. However, that permission was withdrawn in the year 2004 when the late Peter Kariuki Kahumbu filed Thika CM’s Civil Case No. 395 seeking to evict the late Michael Mahuthu Mwangi from the suit land. It is not clear for how long the Plaintifi’s husband had occupied the suit land but if the occupation was in 1992, then in the year 2004, 12 years had elapsed. 10. It is my finding that Thika CM’s Case No. 395/2004 did not deal with the issue of adverse possession. From the judgment dated 10-12-2018, it seems that the late Peter Kariuki Kahuthu sought to evict the late Michael Mahuthu Mwangi. The late Peter Kariuki Kahumbu succeeded but on condition that he compensated Michael Muhuthu Mwangi with Kshs. 770,000/= for the development on the land which included three buildings. There is no evidence that the Defendant’s husband ever complied with the said order. 11. As for the final issue, I find that the Plaintifi is entitled to the suit land through the doctrine of constructive trust and proprietary estoppel. Neither the deceased Peter Kariuiki Kahumbu nor his dependants can be allowed to use failure to obtain the consent of the land control board as a ground for saying that the sale agreement leading to the Plaintifi’s occupation of the suit land is null and void. The Courts have used the two doctrines of constructive trust and proprietary estoppel to prevent unconscionable conduct, particularly in disputes over land and property. The doctrine of constructive trust is not created by an express agreement but by the conduct of the parties. In this case, it is my finding that when Peter Kariuki Kahumbu took Michael Mahuthu’s money in exchange for the suit land a constructive trust was created which Peter Kariuki Kahumbu could not go back on. It was his duty to obtain the consent and to transfer the suit land to the Plaintifi’s husband. Having breached this duty, he cannot be allowed to benefit from his own fault. In the case of Willy Kitilit vs. Michael Kibet [2018] eKLR, whose facts are similar to this, it was held that the doctrines of constructive trust and proprietary estoppel are applicable and enforceable in land transactions, which would otherwise be void for the lack of the consent of the Land Control Board. The Court held that equity is now a constitutional value under Article 10 of the Constitution and it overrides the Land Control Act. 12. Owing to the uncertainty over the date of occupation of the suit land by the Plaintifi and her husband, I find that the doctorine of adverse possession is not definite. What is definite is that the Plaintifi is entitled to the suit land through the doctrines of constructive trust and proprietary estoppel. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3702/eng@2026-06-18 3

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In conclusion and for the reasons given, I enter judgment for the Plaintifi against the Defendant in terms of prayers 1,2, and 3 of the Originating Summons dated 6-3-2025. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF JUNE, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistants– Antony Plaintifi’s Counsel – Mr Ndungu Defendant present in person https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3702/eng@2026-06-18 4

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