Ogeto v Morumbwa & 2 others

2. 5. That the Learned Trial Magistrate erred both in law and fact in relying on technicalities to deny an equitable remedy. 6. That the Learned trial Magistrate erred both in law and in fact in failing to consider the Authorities of superior Courts attached by the Appellant which were binding on her. The background of the Appeal is that the Appellant led a Plaint dated 1st March, 2019, which was later amended on 27th September, 2021, seeking the following orders: a. Declaration that the plainti is the benecial and legal owner of Njoro/Ngata Block 2/4636 (Kirobon A) as he had properly and legally purchased the same for the 1st Defendant and the Defendants jointly and severally be permanently restrained from interfering in the Plainti's quiet possession and enjoyment of the suit property. b. That there is now a constructive trust between the Plainti and the 1st Defendant and the 1st Defendant was holding the Title for the benet of the Plainti and the purported sale and transfer to the 2nd & 3rd Defendants is null and void and it be cancelled. c. That the court ocials do sign transfer form and any other necessary forms to facilitate transfer of the suit property to the Plainti. d. (i) That Alternatively the 1st defendant be compelled to compensate the Plainti herein for the suit parcel at the current market value as per the valuation report led herein (ii) That upon prayer d(i) above being allowed that the said compensation be made in full before the Plainti vacates the suit land (iii) That in default of prayers d(i) and (ii) above the title deed held by the 2nd and 3rd Defendants be declared null and void, be cancelled and the honourable Court to order the Court ocer to sign transfer form and the Land be transferred to the Plainti OR the said property to remain attached allowing the Plainti to initiate the process required to realize his compensation (iv) That the 1st Defendant be ordered to pay general damages for breach of the sale agreement and loss of expectation in breach of agreement. e. Costs of this sit and interest. f. Any other relief the court will deem t to grant 3. The matter was heard and the trial Magistrate dismissed the Appellant’s claim. 4. It was the Appellant’s case in the trial court that he purchased one acre portion of land parcel No. Block 2/4636 (Kirobon A), vide a sale agreement dated 31st December, 2014, from a larger six-acre tract from the 1st Respondent who had bought from David Kipkemoi Rotich for Kshs. 1,100,000/= paid in full, took possession, developed the land, and planted crops. At the time of the purchase, the suit land was registered in the name of David Kipkemoi Rotich. 5. The Appellant further stated in the trial court that the 1st Respondent fraudulently got a title to the suit property in his own name, charged it to Co-operative Bank without his consent and after discharging the property, destroyed the fence and crops, subdivided the land, and secretly transferred it to the 2nd and 3rd Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 2

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6. The 1st ,2nd and 3rd Respondents led a statement of defence dated 24th May, 2019 and later led a joint amended statement of defence dated 8th June, 2023, where they denied the Appellant’s claim to title to Njoro/Ngata Block 2/4636 (Kirobon "A"), asserting that the Appellant is a trespasser with no valid claim. They stated that the 1st Respondent legally owned and charged the land before lawfully transferring it to the 2nd and 3rd Respondents, and prayed that the suit be dismissed with costs. Appellant’s Submissions 7. Counsel for the Appellant led submissions dated 2nd April, 2026, and identied the following issues for determination: a. Whether a Constructive trust existed in favour of the Appellant over the parcel of land Njoro/ Ngata Block 2/4636(Kirobon)? b. Whether the 2nd and 3rd Respondents were innocent purchasers for value? c. Whether the Judgment and decree of the lower court should be reviewed/set aside? 8. On the rst issue as to whether a constructive trust existed in favour of the Appellant over the parcel of land Njoro/Ngata Block 2/4636(Kirobon), counsel submitted that the agreements dated between 31st December 2014 and 17th March, 2016 conrm full payment and settlement on the 1-acre parcel portion clearly described as Njoro/Ngata Block 2/4636(KOROBON). 9. It was counsel’s further submission that clause 5 of the further agreement dated 17th March, 2016, indicated that the Appellant had settled on the suit parcel awaiting processing of the title in his name. Counsel relied on Section 28(b) of the Land Registration Act, and submitted that this created an overriding interest in the form of a constructive trust. 10. Counsel further relied on the case of Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) and the Supreme Court Case of Shah v Mombasa Bricks & Tiles Ltd [2023] KESC 106 (KLR), and submitted that the green card shows that as at 2nd July 2015, when the 1st Respondent became registered as the owner of the suit land, the Appellant had fully paid the purchase price and had taken possession. Further, the 1st Respondent was a trustee and had no capacity to charge or sell the land. 11. Counsel for the Appellant asserted that the trial court dismissed the claim for constructive trust stating that the sale agreement dated 31st December, 2014, was invalid and ordered the refund of the purchase price of Ksh.1,100,000/= which was self-defeating. Counsel relied on the provisos to Section 3(3) and Section 3(4) of the Law of Contract Act, and submitted that even when a land sale agreement is neither in writing, nor signed or attested to, a constructive trust can still be formed, and relied on the case of Maina & 87 others v Kagiri [2014] KECA 880 (KLR). 12. Mr. Chaungu further submitted that a constructive trust over the suit land was formed on 6th March, 2015, when the Appellant paid the nal instalment of the purchase price and settled on the land awaiting a title. Counsel prayed that the decision of the trial Court dismissing the claim be set aside and the appeal be allowed. 13. On the second issue as to whether the 2nd and 3rd Respondents were innocent purchasers for value, counsel submitted that pursuant to Section 28 of the Land Registration Act, a constructive trust created an overriding interest in favor of the Appellant, thus the 1st Respondent had no valid title to transfer to the 2nd and 3rd Respondents, and relied on the case of Rwigi v Karuthu & another [2025] KEELC 747 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 3

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14. Counsel further submitted that for a party to qualify as a bona de purchaser for value, a party must establish that they hold a certicate of title, purchased in good faith, had no knowledge or notice of fraud, paid valuable consideration, bought from a vendor with apparent valid title, and were not party to any fraud. Counsel stated that the 2nd and 3rd Respondent relied on an amended agreement dated 16th November 2018, that was not attested as required by Section 3(3) of the Law of Contract Act, failed to produce the underlying agreement of 20th January 2016, and acted in cahoots with the 1st Respondent to backdate agreements. 15. The Counsel further highlighted that paragraphs 5 and 11 of the Respondents Joint Amended Statement of Defence dated 8th June 2023, the 2nd and 3rd Respondents admitted being aware of the Appellant’s claim to the land and his application for an injunction in Nakuru ELC No. 106 of 2017, prior to their acquisition. Citing Rwigi v Karuthu & another(supra) and Muramba (Suing Through the Power of Attorney of Phoebe Nzale Kazungu) & 3 others v Kimani & another [2023] KEELC 21450 (KLR), counsel submitted that the 2nd and 3rd Respondents are not innocent purchasers for value as they clearly knew of the Appellant’s interest in the land, as the 1st Respondent, as a trustee had no valid title to sell and transfer to them. 16. It was Mr. Chaungo’s submission that the 2nd and 3rd Respondents’ title was a product of fraud which ought to be cancelled, and he relied on the case of Muramba(suing through the Power of Attorney of Phoebe Nzale Kazungu) & 3others v Kimani & another (2023) KEELC 21450(KLR). 17. On the nal issue as to whether the Judgment and decree of the lower court should be reviewed/set aside, counsel submitted that the trial court erred in misinterpreting Section 3(3) of the Law of Contract Act and in, analyzing the evidence before it, arrived at a wrong and unfair decision. Further, the court not only deprived the Appellant of his land but also failed to consider the work he had taken to improve the land. 18. Counsel also submitted that a refund of the 1,100,000/= paid over 11years before the Judgment was an injustice, and urged the court to set aside the Judgment of the lower Court and allow the Appellant’s claim with costs of the lower court and the Appeal. 1St Respondent’s Submissions 19. Counsel for the 1st Respondent led submissions on 20th April, 2026, and identied one issue for determination as to whether there existed a valid and enforceable contract. Counsel submitted that the Appellant’s claim was anchored on an alleged agreement for the sale of land, supported only by a patchwork of inconsistent and legally decient documents appearing at pages 14–16 of the Record of Appeal. 20. Counsel relied on Section 3(3) of the Law of Contract Act, and submitted that a contract for the disposition of land must be in writing, signed by all parties, and attested. Citing the case of Nelson Kivuvani v Yuda Komora & Another, Nairobi High Court Civil Case No.956 of 1991(1991) LLR 7670(HCK), counsel argued that non-compliance with Section 3(3) is fatal, and further that the 1st Respondent denied the sale at pages 55–56 of the Record, which placed the evidential burden squarely on the Appellant to prove the existence of a valid contract, which he never discharged. 21. On the second issue as to whether the payment of the purchase price was proved, counsel submitted that the Appellant failed to prove payment of the alleged purchase price of Kshs. 1,100,000/- and relied on Sections 107–109 of the Evidence Act and the case of Palace Investment Ltd v Georey Kariuki Mwenda & Another [2015] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 4

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22. Mr. Abuya further submitted that the burden of proof lay on the Appellant to adduce credible, cogent, and consistent evidence and that the 1st Respondent denied receipt of the alleged sums. Counsel stated that in the face of such denial, the Appellant’s case required rm evidentiary backing and that the trial Court was therefore correct in nding that payment had not been proved which led to the dismissal of the Appellant’s claim. 23. Regarding whether a constructive trust arose, counsel submitted that the Appellant invoked the doctrine of constructive trust, which neither operates in a vacuum, nor serves as a refuge for claims that fail at law without satisfying the equitable threshold. Counsel relied on the cases of Willy Kimutai Kitilit (supra) and Juletabi African Adventure Ltd & another v Christopher Michael Lockley [2017] eKLR, and argued that the Appellant failed to demonstrate contribution, conduct showing a shared intention and there was no basis upon which the court of equity could intervene. 24. According to counsel, the 1st Respondent’s status as the registered proprietor was protected under Sections 24 and 25 of the Land Registration Act which confer absolute ownership, and further the interlocutory ruling at pages 43–44 of the Record arming that damages would suce as an adequate remedy. 25. On the issue as to whether the Appellant proved fraud or illegality, counsel relying on the case of Kinyanjui Kamau v George Kamau (2015) eKLR, submitted that while particulars of fraud were set out at pages 6-7 and 58–59 of the Record of Appeal, but remained unsubstantiated. Counsel therefore submitted that the trial Court correctly found that fraud had not been proved, hence there is no basis upon which this Honorable Court should disturb the nding. 26. On the issue as to whether the trial Court erred in its nding, counsel submitted that the Appeal lacks merit as it is an invitation to re-evaluate the evidence and arrive at a dierent conclusion, which is not a function of an Appellate Court. 27. Finally, on the issue as to whether the award of Kshs. 1,100,000/= is sustainable, counsel submitted that the trial court's award of Kshs. 1,100,000/, was legally unsustainable and internally inconsistent, as the court having found no valid contract existed, and no proven purchase, there was no basis for proprietary relief or any entitlement to a contractual refund. 28. Counsel relied on the case of Hahn v Singh [1985] KLR 716, and submitted that special damages must be specically pleaded and strictly proved. Counsel argued that the award lacked any proper restitutionary foundation, as restitution is not automatic, but must be grounded on established principles such as unjust enrichment as stated in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212. 29. Mr. Abuya further submitted that this Court retains jurisdiction, even in the absence of a cross-appeal, to set aside an award unsupported by law or evidence and prayed that the appeal be dismissed in its entirety with costs and that the judgment of the trial court be upheld save setting aside the award of Kshs. 1,100,000/. 2Nd And 3Rd Respondents’submissions 30. Counsel for the 2nd and 3rd Respondents led submissions dated 25th May 2026 and reiterated the evidence on record and submitted that the 2nd and 3rd Defendants purchased the land from the Bank which was exercising its statutory power of sale and therefore they are innocent and bona de purchasers from a party that has not been sued. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 5

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31. Counsel further submitted that the Appellant had sued the Bank vide NKR ELC NO. 106 OF 2017, which he withdrew, and similarly lodged a complaint through NKU CR. CASE NO. 4124 of 2016 – Republic –vs- Shem Osiago Morumbwa, the allegations which were withdrawn and led the suit which is the subject of this Appeal. 32. Mr. Machage submitted that the alleged sale agreement dated 17th March 2016, was drawn and signed while the disputed land was already charged to Co-operative Bank on 2nd March 2016. Further, the other alleged agreements do not mention parcel No. Njoro/Ngata Block 2/4636 (Kirobon) therefore the Appellant is trying to impose a constructive trust where there is none. 33. Counsel urged the court to dismiss the Appeal with costs as the court cannot create a constructive trust from an illegal transaction. Analysis And Determination 34. Having considered the Memorandum of Appeal, the pleadings in the Record of Appeal and submissions by both parties, the issues for determination are as follows: a. Whether the Appellant established that, a constructive trust arose in his favour over Land Parcel No. Njoro/Ngata Block 2/4636(Kirobon). b. Whether the 2nd and 3rd Respondents were bona de purchasers for value? c. Whether the Learned Trial Magistrate properly evaluated the evidence and correctly applied the law in dismissing the Appellant’s claim? d. Whether the Appeal has merit. 35. This being the rst appeal, it is this court’s duty to re-evaluate the evidence tendered before the trial court and come to its own independent conclusion taking into account the fact that it did not have the advantage of seeing or hearing the witnesses as they testied. 36. The above principle was enunciated in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where Sir Clement De Lestang (V.P) stated that: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally,” 37. The Appeal revolves around the doctrine of constructive trust where the Appellant entered into a sale agreement with the 1st Respondent who received the full purchase price, put the Appellant into occupation but did not transfer the same to the Appellant. 38. The issue as to whether the Appellant has established that a constructive trust arose in his favour over Land Parcel No. Njoro/Ngata Block 2/4636(Kirobon), it is not in dispute that the Appellant entered into a sale agreement with the 1st Respondent, paid the full purchase price of Kshs.1,100,000, took possession of the suit property carried out developments thereon and remained in occupation. The 1st https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 6

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Respondent acknowledged receipt of payments made by the Appellant and did not dispute that the Appellant was in occupation of the suit land. 39. It is surprising that the 1st Respondent faulted the validity of the sale agreement and yet he subsequently received further payments and gave the Appellant vacant possession. The 1st Respondent cannot have his cake and eat it. After the Appellant paid the full purchase price and took possession of the suit parcel of land, the 1st Respondent became a trustee through the doctrine of constructive trust. If the 1st Respondent truly doubted the validity of the agreement, he could not have continued to receive the purchase price and given possession to the Appellant. He did so; therefore, he became a trustee awaiting transfer to the Appellant. 40. In the case of Macharia Mwangi Maina & 87 Others V Davidson Mwangi Kagiri [2014] eKLR; the court explained what the principle of constructive trust entails by citing with approval the case of: “ In Yaxley – vs- Gotts & Another, (2000) Ch 162, it was held that an oral agreement for sale of property created an interest in the property even though void and unenforceable as a contract; but the oral agreement was still enforceable on the basis of a constructive trust or proprietary estoppel. In the instant case, it was the respondent who put the appellants in possession of the suit property not as licensees but with the intention that he was to transfer individual plots purchased by them. The respondent went ahead and received the purchase price. We are of the considered view that the doctrines of proprietary estoppel and constructive trust are applicable and the respondent cannot renege. As Lord Bridge observed in Llyods Bank Plc – vs- Rosset, (1991) 1 AC 107,132, a constructive trust is based on “common intention” which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the claimant. In the instant case, there was a common intention between the appellants and the respondent in relation to the suit property. Nothing in the Land Control Act prevents the claimants from relying upon the doctrine of constructive trust created by the facts of the case. The respondent all along acted on the basis and represented that the appellants were to obtain proprietary interest in the suit property. Constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention.” 41. The evidence from the record shows that there was a common intention between the Appellant and the 1st Respondent on the sale of the suit land, which led to the Appellant occupying the suit land without interference. The acknowledgments of payment show that the Appellant paid the purchase price in full. 42. Black’s Law Dictionary, 11th Edition at page 1819 denes a constructive trust as: “ An equitable remedy by which a court recognises that a claimant has a better right to certain property than the person who has legal title to it.” 43. Similarly, in the case of Twalib Hatayan & Anor v. Said Saggar Ahmed Al-Heidy & Others [2015] eKLR; the court held as follows: “ According to the Black’s Law Dictionary, 9th Edition; a trust is dened as “1. The right, enforceable solely in equity, to the benecial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benet of a third party (beneciary).” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 7

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Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a benecial interest in the trust property…” In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. (see Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benet (see Halsbury’s Laws of England supra at para1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benet of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. ….. A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a benecial interest upon the transferee (see Black’s Law Dictionary) (supra). This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra). 44. The Supreme Court of Kenya in the case of Shah & 7 others vs Mombasa Bricks & Tiles Limited& 5 others (Petition 18 (E020) of 2022) (2023) KESC 106 (KLR) held that constructive trusts can be imputed into land sale agreements, where the Court explained the purpose and intention of constructive trusts by stating that: 69. A constructive trust is thus an equitable instrument which serves the purpose of preventing unjust enrichment. The Canadian Supreme Court in Soulos v Korkontzilas, [1997] 2 SCR 217, a case which involved a land dispute stated as follows, as to the purpose of constructive trust: The constructive trust is an ancient and eclectic institution imposed by law not only to remedy unjust enrichment, but to hold persons in dierent situations to high standards of trust and probity and prevent them from retaining property which in “good conscience” they should not be permitted to retain. While Canadian courts in recent decades have developed the constructive trust as a remedy for unjust enrichment, this should not be taken as expunging from Canadian law the constructive trust in other circumstances where its availability has long been recognized. Under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, and to remedy unjust enrichment and corresponding deprivation. While cases often involve both a wrongful act and unjust enrichment, constructive trusts may be imposed on either ground.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 8

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45. Applying the above case law, it is clear that there was a constructive trust since there was evidence of the payment of the purchase price in full, which was proved by the agreement dated 17th March, 2016. The 1st Respondent acknowledges in the agreement which is signed by both parties that the Appellant bought the parcel No. Njoro/Ngata Block 2/4636(Kirobon) at Khs.1,100,000/ and further acknowledged that the Appellant had settled on the suit land. 46. On issue as to whether the 2nd and 3rd Respondents were bona de purchasers for value without notice, having found that there was constructive trust in favour of the Appellant which constituted an overriding interest under Section 28(b) of the Land Registration Act, the 2nd and the 3rd Respondents were aware of the Appellant’s occupation and therefore the 1st Respondent being a trustee had no valid title to sell and transfer to them. 47. The 2nd and 3rd Respondents argued that the 1st Respondent was the registered proprietor whose title was protected under sections 24 and 25 of the Land Registration Act and that no fraud or constructive trust was established capable of impeaching the subsequent transfers. When a party intends to purchase a parcel of land, such a party must conduct due diligence to establish the root of the title and conrm that it is a clean title without any encumbrance or a history tainted with uncertainty, fraud or misrepresentation. The 2nd and 3rd Respondents were under this duty and if they did it well, they could have unearthed that the 1st Respondent had sold the suit land to the Appellant and therefore it was not available for sale. 48. The Black’s Law Dictionary 11th Edition at page 1491 denes a ‘bona de purchaser’ as: “ Someone who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or inrmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for the property without notice of prior claims.” 49. As to the elements that need to be established before a party can rely on the defence that they are a bona de purchaser, in the Ugandan case of Katende vs Haridar & Company Limited (2008) 2 E.A.173 it was held that: “ For the purposes of this appeal, it suces to describe a bona de purchaser as a person who honestly intends to purchase the property oered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona de doctrine, (he) must prove that; a. he holds a certicate of title; b. he purchased the property in good faith; c. he had no knowledge of the fraud; d. he purchased for valuable consideration; e. the vendors had apparent valid title; f. he purchased without notice of any fraud; g. he was not party to any fraud. A bona de purchaser of a legal estate without notice has absolute unqualied and answerable defence against claim of any prior equitable owner’’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 9

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50. The 2nd and 3rd Respondents do not meet the above listed elements, as they were aware of the Appellant’s claim on the land, as it was admitted in the defence where they stated that the Appellant had lodged Nakuru Criminal Case No.4124 of 2016 against the 1st Respondent but withdrew midway. The 2nd and 3rd Respondents did not do their due diligence to nd out if the suit parcel was occupied. I nd that the 2nd and 3rd Respondents do not qualify to be considered as bona de purchasers for value. 51. Similarly in the case of Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) (supra), the Court of Appeal held as follows: “ Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that 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.” 52. On issue as to whether the Learned Trial Magistrate properly evaluated the evidence and correctly applied the law in dismissing the Appellant’s claim, counsel for the Appellant submitted that the trial court erred in misinterpreting the provisions of section 3(3) of the Contract Act and in analyzing the evidence before it and found that there was no valid sale agreement, and directed the refund of the purchase price paid to the 1st Respondent. 53. Section 3(3) of the Contract Act states as follows: No suit shall be brought upon a contract for the disposition of an interest in land unless— a. b. the contract upon which the suit is founded— i. is in writing; ii. is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it aect the creation of a resulting, implied or constructive trust. 54. The Learned Trial Magistrate failed to appreciate that section 3(3) of the Contract Act stated that it shall not apply where it is alleged that the transaction created a resulting, implied or constructive trust. The evidence on record shows that the Appellant paid the full purchase price for the suit property, was put in possession by the 1st Respondent. The circumstances gave rise to constructive trust in favour of the Appellant, which is overriding interest under section 28(b) of the Land Registration Act. The trial Magistrate erred in stating that Section 3(3) of the Contract Act defeats Appellant’s equitable claim. 55. I nd that the 2nd and 3rd Respondents had notice of the Appellants interest in the suit property and the pending dispute before acquiring the title. They did not acquire the suit property as bona de purchasers for value without notice and cannot rely on that doctrine to defeat Appellant’s equitable interest. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 10

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56. I have considered the Record of Appeal, the submissions by counsel and the relevant judicial authorities and nd that the Appeal has merit and is therefore allowed in the following specic terms. a. A declaration is hereby issued that the Appellant is the benecial and legal owner of Njoro/ Ngata Block 2/4636 (Kirobon A) as he had properly and legally purchased the same for the 1st Respondent and the Respondents jointly and severally are hereby permanently restrained from interfering in the Appellant’s quiet possession and enjoyment of the suit property. b. That and order is hereby issued that the 1st Respondent was holding the Title to the suit land for the benet of the Appellant and the purported sale and transfer to the 2nd & 3rd Respondents is null and void and are cancelled. c. That 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. d. Costs of the suit and the Appeal to the Appellant. DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF SEPTEMBER 2026. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5562/eng@2026-09-23 11

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