REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MURANG’A ELCLOS E010 OF 2025 JAMES CHARAGU HUNGU ………………..…………………………………………...PLAINTIFF VERSUS MARY GATHIRU KIBUNJA……………………………………………………….….DEFENDANT JUDGMENT (1)In the originating summons dated 11-4-2025, the Applicant seeks the following residual reliefs against the Respondent. II. A declaration that a constructive trust in favour of the Plaintiff was created over the suit land following the execution of a sale agreement between the deceased and the Plaintiff and part payment of the purchase price by the Plaintiff. III. That this Court be pleased to issue an order directing the Land Registrar Murang’a to register the Plaintiff as the lawful proprietor of the suit land, that is to say, L.R. No. Loc.8/Kandegenye/1401 measuring 0.128 Ha, upon delivery by the Plaintiff of the balance of the purchase price amounting to Kshs. 292,000/= to the estate of the deceased. IV. That in the alternative to prayer III above, the Court do direct the estate of the deceased to reimburse Kshs. 508,000/= delivered to the deceased, John Mwangi Kibunja by the Plaintiff being part payment of the consideration for the suit property. V. Interest on III above. VI. Costs of the suit. (2)The Applicant’s case is as follows. Firstly, on 30-12-22 he entered into a sale agreement with the deceased John Mwangi Kibunja where he bought L.R. No. Loc.8/Kandegenye/1401 measuring 0.128 Ha at a consideration of Kshs. 800,000/=. Secondly, the seller who is now deceased received a total of Kshs. 508,000/= from the Applicant on various dates as follows. MRG ELCLOS E010 NO 10 OF 2025(OS) 1J of 4
page 1 of 4
Date Amount in Kshs 30-12-22 30,000/= 19-3-23 34,000/= 1-6-2023 23,000/= 22-6-2023 50,000/= 2-7-2023 200,000/= 12-9-2023 171,000/= TOTAL 508,000/= Thirdly, the deceased died before he could transfer the land to the Applicant so that the land remains in the name of the deceased. Fourthly, the Respondent is the legal representative of the estate of the deceased after she was appointed on 18-11-2024 in a case at the Chief Magistrates Court at Murang’a. She has been reluctant to honour the agreement between the Applicant and the deceased hence the filing of the suit. The Applicant is, apprehensive that the Respondent will alienate the suit property in disregard of the purchaser’s interest held by the Applicant in the suit land. (3)In support of his case, the Applicant filed the following evidence. (a) Copy of the sale agreement dated 30-12-2022. (b) Copies of acknowledgments dated 19-3-2023, 1-6-2023, 22-6-2023, 2-7-2023 and 12-9-2023. (c) Supporting affidavit dated 11-4-23. (d) Witness statements by Joseph Karanja, Simon Chege Kamau, John Kariuki Githitu and the Applicant himself. All the witness statements are dated 14-42025. (e) Witness statement by Muriranja Tom Koigi dated 1-9-2025. (f) Two (2) coloured photographs showing a parcel of land with beans, maize, bananas and sugar cane growing thereon. There is also a corrugated iron sheet structure and a marked grave of John Mwangi Kibunja. (g) Copy of title deed for the suit land dated 25-1-2022. MRG ELCLOS E010 NO 10 OF 2025(OS) 2J of 4
page 2 of 4
(4)The Respondent though served through her daughter Jane Wambui vide mobile telephone number 0724274594 on 22-4-2025 and through her own telephone No. 0791218370 twice on 6-3-2026 and 7-4-2026 did not respond to the summons or file any appearance. (5)On 15-7-2026, the Applicant testified in open Court physically where he produced the documents that he had earlier filed. He also called three witnesses who included Muriranja Tom Koigi, Simon Chege Kamau and John Kariuki Githitu. They all adopted their written statements as their evidence. (6)I have carefully considered all the evidence adduced in this case by the Applicant and his witnesses. I find that there are two issues for determination in this case. (a) Whether the Applicant purchased the suit property. (b) Whether a constructive trust arose in his favour in all the circumstances of this case. (7)On the first issue, I find overwhelming evidence from the sale agreement and the acknowledgments that the deceased received a total of Kshs. 508,000/= as consideration for the sale of the suit land. The agreement clearly states that should there be any balance, it should not be claimed by the sellers relatives and if the deceased lived after receiving the full purchase price of Kshs.800,000/=, the Applicant would continue supporting him financially until his demise. This evidence is corroborated sufficiently in material particulars by the evidence of the three witnesses who testified and it is not controverted because the Respondent did not oppose the summons herein. (8)Regarding the second issue, the fact that the deceased did not complete the formal transfer of the sit land to the Applicant does not defeat the Plaintiff’s equitable interest. In the cases of Macharia Mwangi Maina and 87 Others vs. Davidson Mwangi Kagiri, the Court of Appeal held that where a purchase has paid the purchase price and has been put in possession, the conduct of the parties gives rise to a constructive trust even in the absence of formalities relating to the transaction. Similarly in the case of Willy Kimutai Kitilit vs. Michael Kibet, MRG ELCLOS E010 NO 10 OF 2025(OS) 3J of 4
page 3 of 4
the Court of Appeal recognized that a Constructive trust may arise in favour of a purchaser who has paid the purchase price and taken possession, and that such equitable rights may constitute on overriding interest over the land. (9)In the present case, I note that the principle in the two cases applies as the facts are similar. I therefore find that a constructive trust arose in favour of the Applicant and that the estate of the deceased holds the suit land in trust for him. (10) In conclusion and for the reasons given, I enter judgment for the Applicant against the Respondent in terms of prayers II, III and VI of the originating summons dated 11-4-2025. Further, if any instrument is required to effect the transfer of the suit land to the Plaintiff, the Deputy Registrar is hereby authorized to execute all such instruments. No order as to costs. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 23rd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistants – Antony Applicant’s Counsel – Respondent’s Counsel – MRG ELCLOS E010 NO 10 OF 2025(OS) 4J of 4
page 4 of 4