Wakasiaka v Oingo
The bottom line
#Kenya's Court of Appeal gave a land buyer who paid most of the purchase price a 90% share of the property, even though her adverse possession claim failed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was adverse possession of the suit land by the appellant
- 2.Whether the appellant had demonstrated the existence of a trust over the suit land
- 3.Whether the respondent's suit was res judicata
Key legal issues
#Whether the appellant acquired title by adverse possession
No. Her 1990 suit for specific performance acknowledged the respondent's registered ownership, interrupting adverse possession; time ran afresh only from dismissal of that suit on 7th December 2001, so 12 years had not elapsed by the time of the 2004 eviction suit.
The court applied Githu v Ndeete and Wambui Gikwa: assertion of the title holder's right through legal proceedings interrupts possession whether or not the proceedings succeed. By seeking transfer of the land to herself, the appellant admitted the respondent's title, stopping time. Possession after 7th December 2001 was adverse, but the respondent's 2004 suit was filed before 12 years had accrued, defeating the claim.
Whether a trust arose over the suit land
Yes, a constructive trust. The appellant paid a substantial part of the purchase price, took possession for decades, and it would be unconscionable and unjustly enriching for the respondent to retain legal ownership; the appellant obtained a 90% beneficial interest.
Following the Supreme Court in Shah v Mombasa Bricks & Tiles, a constructive trust may be imported into a land sale agreement to defeat registered title. Given the substantial part payment, conflicting evidence on why the balance was unpaid, the respondent's late attempt at refund, and the appellant's long occupation, equity required treating the respondent as a constructive trustee; shares were apportioned proportionally to payment.
Whether the respondent's eviction suit was res judicata
No. Although parties and issues were the same, the Chief Magistrate's Court in Bungoma CMCC No. 545 of 2004 expressly lacked jurisdiction over both the eviction claim and the adverse possession counterclaim, so its judgment was a nullity and could not found res judicata.
Applying section 7 of the Civil Procedure Act as summarised in John Florence Maritime and made conjunctive in Dina Management, all elements must be satisfied, including jurisdiction. The magistrate's court had vested jurisdiction over trespass in the land disputes tribunal and over adverse possession in the High Court; a nullity cannot operate as res judicata.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, departing from trial findings only where they were not based on the evidence, where wrong principles were applied, or where discretion was exercised injudiciously.
- Time in adverse possession ceases to run when the owner asserts his right by legal proceedings or effective entry, or when the adverse possessor admits the owner's right; a purchaser's suit for specific performance acknowledging the registered owner's title interrupts adverse possession.
- A constructive trust can be imported into a land sale agreement to defeat a registered title, as an equitable intervention against unconscionable conduct, imposed whenever justice and good conscience require.
- The elements of res judicata under section 7 of the Civil Procedure Act are conjunctive: a final judgment on merit by a court with jurisdiction, between identical parties, subject matter and cause of action; a judgment by a court lacking jurisdiction is a nullity and cannot found res judicata.
Court orders
#- 1.Appeal allowed; judgment of the Environment and Land Court at Bungoma dated 29th June 2020 on the two consolidated suits set aside in its entirety
- 2.A declaration that the appellant holds a beneficial interest in the parcel of land known as E. Bukusu/S/Kanduyi/2016 measuring (0.64) registered in the names of the respondent
- 3.A declaration that the parcel of land known as E. Bukusu/S/Kanduyi/2016 is held in trust by the respondent as a constructive trustee for the appellant
- 4.Beneficial shares apportioned: appellant 90%, respondent 10%
- 5.Respondent to surrender the original title deed to the Land Registrar Bungoma within 30 days and execute documents to register 90% in the appellant's name and 10% in the respondent's name
- 6.In default, the Bungoma Land Registrar and Bungoma County Surveyor to partition the land notwithstanding absence of the original title deed, and the Deputy Registrar of the Environment and Land Court at Bungoma to execute documents on behalf of the appellant
- 7.Appellant to meet the costs of the partition and other related costs
- 8.Each party to bear their respective costs of the consolidated suits in the Environment and Land Court at Bungoma and of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Bungoma
- Bungoma ELC No. 161 of 2017 consolidated with Bungoma Civil Case No. 66 of 2015
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules; powers exercised under Rule 33 of the Court of Appeal Rules, 2022
- Consolidated with
- Bungoma ELC No. 161 of 2017, Bungoma Civil Case No. 66 of 2015
Relief refused
#Registration of the appellant as sole proprietor of the suit land / cancellation of the respondent's entire title
The appellant was proportionally entitled to a 90% beneficial interest only, given part payment of 26,000 out of a purchase price of 29,000
Costs
Each party shall bear their respective costs of the consolidated suits in the Environment and Land Court at Bungoma and of this appeal; the appellant shall meet the costs of the partition and other related costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly allow the appeal, and set aside the judgment by the Environment and Land Court at Bungoma (B. Olao J.) delivered on 29th June 2020 on the two consolidated suits, being Bungoma ELC No. 161 of 2017 and Bungoma Civil Case No. 66 of 2015 in its entirety.
Given the circumstances giving rise to this appeal, each party shall bear their respective costs of the consolidated suits in the Environment and Land Court at Bungoma and of this appeal.
the appellant having paid 26,000/= out of a purchase price of 29,000/= is therefore proportionally entitled to a beneficial interest of 90% of the suit land.
that time ceases to run when the owner asserts his right by taking legal proceedings or by an effective entry into the land or when his right is admitted by the adverse possessor.
we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.
The suit subsequently filed by the respondent in Bungoma ELC No. 161 of 2017 for eviction was accordingly not res judicata.
Issues in the judgment
#Purchaser misidentified as payer of the deposit
Conflicting dates for dismissal of Bungoma CMCC No. 545 of 2004
Wrong gender pronoun for the appellant
Inconsistent parcel number in respondent's plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakasiaka v Oingo", Case Analysis (2026). Civil Appeal E017 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.