Mutanthi v M’ambutu

property] previously belonged to and was registered in the name of M’Abutu Mwirebua [deceased]; the deceased was the father of the 1 st and 4th Respondents; the deceased was a father in law to the 2 nd respondent; the deceased was also a grandfather to the 3rd respondent; the deceased entered into a sale agreement with the appellant; the deceased sold 1.5 acres of the suit property to the appellant; the deceased convened a family meeting and informed all the family members; and all the family members of the deceased were privy to and knowledgeable of the transaction between the deceased and the Appellant. 3. Additionally, the 1st respondent asserted thus: The deceased allowed the Appellant to enter upon and establish his residential home on a portion of the suit property; the homestead of the Appellant has been on the suit property since the year 1999; the Appellant has resided on the sold portion of the land to date; and the occupation of the Appellant over a portion of the suit property by the Appellant is known to all the family members, including the 2nd and 3rd Respondents. 4. The 1st respondent also asserted thus: The 2nd respondent tricked the deceased and caused the entire of the suit property to be registered in the name of the 3rd respondent and herself; the registration of the entire suit property was undertaken on the face of the appellant’s occupation; the 2 nd and 3rd respondents are now threatening to evict the appellant; and the Appellant is entitled to his portion out the suit property. Page 2 of 28

page 2 of 28

5. The 2nd and 3rd Respondents [who are mother and son, respectively], entered appearance and filed a joint statement of defence. The named respondents denied the claims by /on behalf of the Appellant. 6. Moreover, the named Respondents asserted thus: The suit property previously belonged to M’Abutu Mwirebua [deceased]; the deceased was the father in law of the 2nd respondent; the deceased transferred the suit property to the 2nd and 3rd Respondents on the basis of gifts; the 2nd and 3rd Respondents are the lawful owners of the suit property; the 2 nd and 3rd defendants are the ones who are in occupation of the suit property; and the Appellant has no lawful rights to the suit property. 7. In addition, the 2nd and 3rd respondents have contended that: The appellant’s occupation of 1.5 acres of the suit property has been forceful; the Appellant has no rights to the suit property; the actions by the Appellant constitute trespass; and the sale agreement in favour of the Appellant has since been overtaken by events. 8. The 4th respondent, who is the husband of the 2nd respondent does not appear to have entered appearance or filed a statement of defence. Nevertheless, the record shows that a notice of appointment was filed by Ms. Wanjiku Muna and Company Advocates, on behalf of the 2nd, 3rd and 4th Respondents. However, when the interlocutory judgment was set aside, the defence that was ultimately filed through the firm of Ms. Munene Kirimi and Company Advocates, only related to the 2nd and 3rd defendants. 9. The suit before the lower court was heard and determined vide judgment dated the 25.10.2024, whereupon the learned trial magistrate [Hon. S. Page 3 of 28

page 3 of 28

Ndegwa – Senior Principal Magistrate] found and held that the Appellant herein had not proved or established the plea of constructive trust. To this end, the learned trial magistrate proceeded to and dismissed the appellant’s suit. The Appellant was condemned to pay costs of all the Respondents [the defendants in the lower court]. 10.Dissatisfied, the Appellant has now moved this court vide memorandum of appeal dated the 09.10.2024. The memorandum of appeal was subsequently amended resting with the amended memorandum dated the 03.07.2025. 11. The grounds of the appeal are: i. That the learned trial magistrate erred in law and facts by failing to interpret the law purposively and thus arriving at an erroneous decision. ii. That the learned trial magistrate erred in law and facts by failing to decide the case against the weight of the evidence on record and dismissing the appellant’s case. iii. That the learned trial magistrate erred in law and fact in failing to appreciate sufficiently or at all the evidence that was before her and erred in finding the Appellant not entitled to any of the prayers merely because of the conduct of the 2 nd defendant during hearing. Page 4 of 28

page 4 of 28

iv. That the learned trial magistrate erred in law and fact in failing to take into account the documentary evidence presented by the Appellant thus arriving at an erroneous decision. v. The trial magistrate erred in law and in fact in finding that the evidence of fraud was not proved on the required standard [legal and evidential]. vi. The trial magistrate erred in law and fact in considering extraneous facts and evidence thus arrived at an erroneous decision. 12.The subject appeal came up for directions on 30.06.2026, whereupon the advocate for the appellant, intimated to the court that same had since filed and served a compliant record of appeal. The counsel invited the court to issue directions as pertains to the hearing and the disposal of the appeal. Moreover, learned counsel proposed to have the appeal canvassed by way of written submissions. 13.With the concurrence of learned counsel for the 2 nd and 3rd Respondents, the court proceeded to and issued directions. The directions were: The record of appeal dated the 29.06.2026 is complete; the appeal shall canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondents shall file and serve written submissions within 14 days from the date of service and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. Page 5 of 28

page 5 of 28

14.The Appellant herein filed two [2] sets of written submissions. The submissions are dated the 06.07.2026 and the 25.07.2026, respectively. The Appellant has highlighted four key issues. 15. The issues are: The learned trial magistrate failed to take into account and consider the extensive evidence that was tendered by the appellant; the learned trial magistrate erred in law in finding and holding that fraud had not been established /proved by the appellant; the learned trial magistrate disregarded the documentary evidence by the Appellant and resorted to extraneous facts; and the validity of the sale agreement dated the 13.01.1999 was never questioned/impeached during the trial. 16.Learned counsel for the Appellant has therefore cited and referenced assorted decisions to support the contention that the Appellant indeed proved the claim of constructive trust. The decisions cited are: Macharia Mwangi and 87 others versus Davidson Mwangi Kagiri and another [2014] eKLR; Willy Kimutai Kitilit versus Michael Kibet [2018] KECA; National Bank of Kenya Limited versus Pipeplastic Samkolit Company Limited [2002] ; and Chombo versus Musagah and another [2023] KECA 88, respectively. 17.In a nutshell, learned counsel for the Appellant has submitted that the Appellant tendered and adduced evidence to demonstrate that same [appellant] entered into a lawful sale agreement; the sale agreement was between M’Ambutu Mwerebua [now deceased] and the appellant; the sale agreement related to a portion measuring 1.5 acres of the suit property; the purchase price was duly paid and acknowledged; the Page 6 of 28

page 6 of 28

deceased proceeded to and obtained land control board consent for subdivision; and the suit property was duly subdivided. 18.Moreover, it has been submitted that the deceased, who was the registered owner of the suit property, at the material time, proceeded to and placed the Appellant in occupation of the sold portion of land. It has been submitted that the Appellant entered onto the suit property in the year 1999 and has remained in occupation thereof to date. 19.Based on the foregoing, it has been submitted that the Appellant acquired rights to and in respect of the sold portion of the suit property; and that the rights acquired vide constructive trust, constitutes overriding interest in respect of the suit property. 20.Learned counsel for the Appellant has therefore invited the court to find and hold that the impugned judgment, is contrary to the weight of the evidence on record; and the learned trial magistrate misapprehended the law as pertains to constructive trust. The court has been implored to allow the appeal; set aside the impugned judgment; and to allow the plaintiff’s suit vide plaint dated the 05.05.2021. 21.The 2nd and 3rd Respondents filed written submissions dated the 15.07.2026 and wherein same [2nd and 3rd Respondents] have canvassed two thematic issues. The issues are: Whether the Appellant proved the claim of adverse possession; and whether the Appellant proved his claim on adverse possession, or otherwise. Page 7 of 28

page 7 of 28

22.Learned counsel for the 2nd and 3rd Respondents have contended that the evidence that was tendered by the Appellant and his witnesses, was replete with contradictions and inconsistencies. On the basis of the inconsistencies, it has been posited that the plea of constructive trust does not lie. Moreover, it has been submitted that the appellant, bore the burden of proving his claim to the requisite standards. In spite of the obligation, Learned Counsel has submitted that the Appellant failed to do so. 23.To buttress the submissions that the Appellant failed to discharge the burden of proof, pertaining to the plea of constructive trust, learned counsel for the 2nd and 3rd respondents has referenced the decision in Moi versus Muriithi [2014] KECA 642, wherein the court underscored the obligation of the claimant to prove own case. 24.Regarding the second issue, learned counsel for the 2nd and 3rd Respondents, has submitted that the claim of adverse possession was not established. Moreover, it has been submitted that a claim based on adverse possession does not fall with the purview of the Chief Magistrate’s Court. 25.In support of the foregoing submissions, learned counsel has referenced the decision in the case of Njoki Wainaina versus Josephat Thuo Githachuri and 3 others; National Land Commission and another [Interested parties] [2021] KEELC 1553. Page 8 of 28

page 8 of 28

26.Premised on the foregoing, learned counsel has invited the court to find and hold that the subject appeal is devoid of merits and thus deserves to be dismissed. The court has been implored to dismiss the appeal; affirm the impugned judgment; and to award costs to the 2nd and 3rd Respondents. 27.Having reviewed the record of appeal; the impugned judgment and upon taking into account the written submissions filed by / on behalf of the parties, two [2] key issues crystalize for determination. The issues are: Whether the Appellant proved the plea of constructive trust to the requisite standard or otherwise; and What appropriate reliefs [if any] ought to be granted. 28.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the findings and conclusion[s] arrived at by the trial magistrate, accord with the evidence on record and the legal principles. 29.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based Page 9 of 28

page 9 of 28

on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 30.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked, exercised at will, or better still, for the mere asking. Most importantly, Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 31.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. 32. The court stated thus: “46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and reevaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain Page 10 of 28

page 10 of 28

whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 33.Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner: “We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the Page 11 of 28

page 11 of 28

demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal Page 12 of 28

page 12 of 28

testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see Page 13 of 28

page 13 of 28

also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 34. With the foregoing in mind, I now wish to return to the issues for determination. I beg to start with the first issue, namely; whether the Appellant proved/established the plea of constructive trust, to the requisite standard. 35. It is important to underscore that constructive trust is a doctrine of equity, and same depends on the circumstance[s] attendant to each case and the evidence tendered. Moreover, there is no gainsaying that the claimant seeking to prove the plea of constructive trust, is obligated to tender plausible and credible evidence. 36.In the case Kazungu Fondo Shutu & another v Japhet Noti Charo & another [2021] KECA 592 (KLR), the Court of Appeal addressed stated thus: “28.The concept of trust must however be proved. This Court in the case of Mumo v Makau [2002] 1EA.170, held that “trust is a question of fact to be proved by evidence…..” See also Kanyi Muthiora v Maritha Nyokabi Muthiora, Nairobi Court of Appeal No.19 of 1982. 29. In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, this Court dealt with the issue of trust at length. The Court made reference to Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR and re-stated the law on trusts as follows: - Page 14 of 28

page 14 of 28

“According to the Black’s Law Dictionary, 9th Edition; a trust is defined as “1. The right, enforceable solely in equity, to the beneficial 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 benefit of a third party (beneficiary).” Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial 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. … 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 benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. … Page 15 of 28

page 15 of 28

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 beneficial interest upon the transferee ... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th 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).” 37. The court went further and stated thus: “31. As earlier stated, the existence of a trust is a question of evidence. In the Juletabi case (supra), the court held that the onus lies on the party relying on the existence of a trust to prove it through evidence. That is because: “The law never implies, the Court never presumes a trust, but [only] in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.” Page 16 of 28

page 16 of 28

38.Did the Appellant prove constructive trust? The Appellant tendered evidence before the trial court and averred that same duly entered into and executed a sale agreement dated the 13.01.1999. The sale agreement was entered into between M’Abutu Mwirebua [now deceased] and the appellant. The sale agreement under reference was reduced into writing and thereafter executed by both parties, namely; the vendor and the purchaser, respectively. 39.It was the further testimony of the Appellant that following the execution of the sale agreement, same [appellant] paid the purchase price. In addition, it was asserted that the purchase price was duly received and acknowledged by the deceased. For good measure the Appellant tendered evidence, including the proceedings before the tribunal, wherein the deceased, admitted and acknowledged receipt of the purchase price. 40.Additionally, the Appellant tendered evidence to show that upon the entry into and execution of the sale agreement, the deceased, whose estate is represented by the 1st respondent, allowed the Appellant to enter upon and take possession of the sold portion of the suit property. In particular, the Appellant testified that he entered upon and took possession of the sold portion of the suit property in 1999. Moreover, the evidence of the Appellant that he entered upon and took possession of the sold portion of the suit property in 1999 and has remained in occupation thereof, was corroborated by various witness who testified on behalf of the appellant. 41.It is instructive to note that the various witnesses who testified on behalf of the Appellant included Jane Kirimi [PW2] and Jacob Gihtinji M’Abutu Page 17 of 28

page 17 of 28

[DW1]. It suffices to underscore that the two witnesses [PW2] and [DW1] are daughter and son, respectively of M’Abutu Mwirebua [now deceased]. The two witnesses confirmed that the deceased indeed sold 1.5 acres of the suit property, to and in favor of the appellant. In addition, the two witnesses also affirmed that the Appellant was permitted to and entered upon the sold portion of the suit land. 42.Furthermore, PW2 and DW1, also testified that the Appellant has continued to reside on the sold portion of suit property, to date. Crucially, PW2 and DW1, have also confirmed that the deceased convened a family meeting and intimated to his family members, that same had lawfully sold land to the appellant. 43.Other than the testimony of PW1, PW2 and DW1, which affirm that the Appellant is in occupation of a portion of the suit property, DW2 [Sabala Nkirote ] has also admitted that the Appellant is indeed in occupation of 1.5 Acres of the suit property. However, DW2 contends that the appellant’s occupation has been by force. 44.DW2 further contends that the Applicant’s occupation of the suit property, is predicated upon an illegal and invalid sale agreement. It has been posited that the said sale agreement was/is overtaken by events. [See Paragraph 11 and 12 of the statements of defence dated the 08.11.2021]. 45.It is also imperative to point out that DW2 acknowledges that her husband [the 4th respondent] supports the appellant’s occupation of the Page 18 of 28

page 18 of 28

1.5 acres of the suit property. This is what DW2 stated during cross examination by learned counsel for the appellant: “I used to live in but my husband chased me away. I live there on and off. He supports the plaintiff’s occupation of the land. My children don’t support. The plaintiff continues staying on the land. I am not aware if my husband’s siblings support the plaintiff’s continued occupation.” 46.To my mind, the fact that the Appellant entered onto the sold portion of the suit property in 1999 and has remained in occupation thereof to date, is not in dispute. In addition, there is also no contest that the appellant, was placed in occupation by the deceased, who was previously the registered owner of the suit property. Moreover, it is not lost on me that the deceased placed the Appellant in occupation of the sold portion of the suit property, upon receipt of the purchase price. 47.It is also worthy to highlight that by the time the suit property was being transferred to and registered in the names of the 2nd and 3rd Respondents, the Appellant was already in occupation. This means that the 2 nd and 3rd Respondents, became the registered owners of the suit property, subject to the appellant’s occupation. The 2nd and 3rd Respondents, knew of the appellant’s occupation and possession of the suit property, but same did not implore the deceased, to remove the Appellant from the portion of the suit property, before transferring the land. 48.To my mind, the 2nd and 3rd Respondents became registered as the owners of the suit property, subject to the encumbrances and overriding interests, attaching to the suit property. The encumbrances and the overriding Page 19 of 28

page 19 of 28

interests included the rights of the appellant, who was already in occupation/possession. The mere transfer and registration of the suit property in the names of the 2nd and 3rd Respondents; and the change of ownership of the suit property, did not extinguish the overriding interests. 49.The provisions of section 30 [g] and [f] of the Registered Land Act, Chapter 300 Laws of Kenya [now repealed], states thus: “The rights of a person in possession, or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.” Section 30(f) of the Registered Land Act, states thus: “Rights acquired or in the process of being acquired, by virtue of any written law relating to the limitation of actions or by prescription.” 50.What was previously provided for and captured vide Section 30 of the Registered Land Act [ now repealed], were reconfigured and now form part of Section 28 of the Land Registration Act, 2012 [2016]. The relevant section stipulates thus: 28. Overriding interests Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register— (a)deleted by Act No. 28 of 2016, s. 11(a); Page 20 of 28

page 20 of 28

(b)trusts including customary trusts; (c)rights of way, rights of water and profits subsisting at the time of first registration under this Act; (d)natural rights of light, air, water and support; (e)rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (f)deleted by Act No. 28 of 2016, s. 11(b); (g)charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (h)rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (i)electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and (j)any other rights provided under any written law provided that the Registrar may direct the registration of any of the liabilities, rights and interests hereinbefore defined in such manner as the Registrar deems necessary. 51.The suit property may have been transferred to and registered in the names of the 2nd and 3rd Respondents, but it is important to underscore that overriding interests, which includes the right of a person in possession; trust [whether constructive/implied /resultant /customary], attach to the land and move with the land. Simply put, overriding interests, are rights in rem, as opposed to rights in personam. In this Page 21 of 28

page 21 of 28

regard, the learned trial magistrate misapprehended the import of the appellant’s rights when same stated thus: “Has the plaintiff proved the existence of a constructive trust in his favor as against the 2nd defendant? I think not. The 2nd defendant had not direct dealings with the plaintiff. If he was owed any right, the same would be by the deceased M’Ambutu Mwirebua, whom the plaintiff pursued at the Lands Disputes Tribunal, which ruled in his favor, but which decision was quashed by way of judicial review”. 52.What is apparent is that the learned trial magistrate misapprehended the legal import and tenor of an overriding interest and how it impacts on the landed property. In my humble view, had the learned trail magistrate appreciated what constitutes a right in rem, same would have, no doubt, arrived at a different conclusion. 53.It is imperative to recall that the Appellant was placed in occupation of the sold portion by the deceased, who was the owner of the suit property. The deceased did not endeavor to remove the appellant. The appellant’s rights accrued as against the deceased; the deceased’s estate; and any one, the 2nd and 3rd Respondents, not excepted, who derived their rights therefrom. Consequently, the 2nd and 3rd Respondents cannot evade the snares of constructive trust. 54.In the case of Maina & 87 others v Kagiri [2014] KECA 880 (KLR), the Court of Appeal considered the fate of purchasers, who had been placed in occupation of portions of the designated land by the owner Page 22 of 28

page 22 of 28

thereof, who thereafter, sought to renege on/ resile from the contract [sic] on the basis that the land control board consent has not been obtained. 55.The court stated thus: “ 29. The totality of our re-evaluation of the facts and applicable law in this case leads us to conclude that the Honourable Judge erred in failing to consider that the Appellants were in possession of the suit property, that the Respondent had created a constructive trust in favour of all individuals who had paid the purchase price for respective plots and the trial court erred in failing to note that consent of the Land Control Board is not required where a trust is created over agricultural land. We do find that the possession and occupation by the Appellants of the suit property is an overriding interest attached to the said property.” 56.The holding in the decision [supra] applies to the subject matter. I hereby adopt and reiterate the decision under reference. 57.Before concluding on this issue, I wish to point out that whenever a court of law seeks to make a finding or holding on the basis of demeanor of a witness, namely, whether the witness is truthful or otherwise, the court is obligated to highlight the aspects of the testimony [if any] that founds the basis of the observation. It is not enough for a court to simply say I found witness ‘A’ less candid or otherwise. 58.The law in this regard, was highlighted in the case JON CARDON WAGNER v REPUBLIC & 2 others [2011] KEHC 3272 (KLR), where the court cited with approval the case of Omuroni vs Republic (2002) 2 EA 508. The stated thus: Page 23 of 28

page 23 of 28

“Trial courts can decide cases one way or the other on the basis of demeanour of a witness or witnesses particularly where the issue of credibility of such witness is decisive. In such a case the trial judge must point out instances of demeanour which he noted and upon which he relies. The trial court must point out what constituted the demeanour which influenced the trial judge to make favourable or unfavourable impression about the credibility of a particular witness.” 59.I now which to turn to the 2nd issue which touches on and concerns, the appropriate reliefs [if any] which ought to be granted. The Appellant herein sought various reliefs including a declaration that the 2nd and 3rd Respondents, hold a portion measuring 1.5 acres of the suit property, in trust for him. I have already found and held that the appellant’s rights to the suit property, constituted overriding interests. In addition, I have also found and held that the overriding interests, have birthed constructive trust in favor of the Appellant. 60.Consequently, and in the premises, I encounter no difficulty in returning a finding that the 2nd and 3rd Respondents, hold 1.5 acres of the suit property in trust for the appellant. 61.Furthermore, the Appellant has established a basis to warrant an order directing the 2nd and 3rd Respondents, to excise the portion measuring 1.5 acres out of the suit property; and to transfer same to and in favor of the appellant. 62.Additionally, it is imperative to underscore that upon the transfer of the 1.5 acres out of the suit property to the appellant, the Appellant shall Page 24 of 28

page 24 of 28

become the registered owner thereof and thus the Appellant shall be entitled to absolute and exclusive rights. Such rights would require due protection under the law. The protection can only accrue, if an order of permanent injunction is issued. 63.In this regard, I am persuaded that the Appellant has also demonstrated a basis to warrant the grant of an order of permanent injunction. The legal import and tenor of such an order, was illuminated in the case of Kenya Power & Lighting Company Ltd v Habib [2018] KEHC 5027 (KLR)]. 64.Regarding the question of costs, I beg to state that costs ordinarily follow the event. However, the court retains a discretion, on whether or not to award such costs, depending on the circumstances of the case. Suffice it to underscore that where the court, is inclined to exercise the discretion, good reasons must be stated. 65.In respect, of the instant matter, the 2nd and 3rd Respondents are closely related to the 1st and 4th Respondents. Moreover, the Appellant [the successful party], is a close neighbor of the 2nd and 3rd Respondents. This is a matter where the court ought to foster, if not, inspire good relationship, despite the outcome of the suit. 66.In a nutshell, and bearing in mind the guiding principles in the case of Jasbir Singh Rai and 3 others versus Tarlochan Singh Rai and 4 Others [2013] eKLR, I am minded to and do hereby direct that each party shall bear own costs of the suit in the lower court and the appeal. Conclusion Page 25 of 28

page 25 of 28

67.The Appellant herein was obligated to demonstrate that the learned trial magistrate misapprehended and misapplied the law as pertains to constructive trust. I beg to underscore that the Appellant has indeed established that the learned trial magistrate misapprehended the legal import of the overriding interests; the rights of a party in possession; and the fact that such rights, birth trust. 68.Further, and in addition, it has also been established that the learned trial magistrate misapprehended that overriding interests and constructive trust, are rights in rem as opposed to rights in personam. Such rights attach to and move with the land, irrespective of change of ownership. 69.In short, I find and hold that the appeal is meritorious. Consequently, the appeal be and is hereby allowed. Final orders: 70.In the end, the final orders that commend themselves to the court are: (a) The Appeal be and is hereby Allowed. (b) The Judgment of the learned trial magistrate dated the 25.10.2024, and the consequential decree arising therefrom, be and is hereby set aside. (c) In lieu thereof, Judgment be and is hereby entered in favour of Appellant as hereunder: Page 26 of 28

page 26 of 28

i. There be and is hereby issued a declaration that the 2 nd and 3rd Respondents hold 1.5 acres out of LR No. Nyaki/Thuura /1886 in trust for the appellant. ii. The 2nd and 3rd Respondents be and are hereby directed to excise 1.5 acres out of LR No. Nyaki/Thuura /1886 and to transfer same to and in favor of the Appellant. iii. The 2nd and 3rd Respondents shall proceed and execute the mutation form, the application for land control board consent, and the transfer instruments; together with such other documents of conveyance, to facilitate the subdivision and consequential transfer of the subdivision to the appellant. iv. The documents in terms of clause [iii] shall be executed within 60 days from the date hereof. v. In default by the 2nd and 3rd Respondents to execute the documents/instruments of sub division and transfer in terms of clause [iii] above, the Deputy Registrar shall be at liberty to execute same, subject to prove of service of the decree. vi. There be and is hereby issued an order of permanent injunction to restrain the Respondents; and in particular, the 2nd and 3rd Respondents, either by themselves, servants, agents and or anyone claiming under them from Page 27 of 28

page 27 of 28

interfering with the appellant’s possession and rights in respect of the 1.5 acres forming part of the suit property. vii. Each party shall bear own costs of the appeal. viii. Similarly, each party shall bear own costs of the suit in the lower court. ix. The Appellant shall however, bear the survey fees; stamp duty; and the fees on registration of the resultant sub division. 71.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON THIS 17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo Ms. Waithira for the Appellant Mr. Kiogora Nganga holding brief for the 2nd and 3rd Respondents N/a for the 1st Respondent N/a for the 4th Respondent Page 28 of 28

page 28 of 28