Kembo (Appealing as the Administrator of the Estates of Agustino Okwahela Kembo - Deceased) v Namukuru (Suing in Her Capacity as the Administrator of Joshua Mukenya Mutokaa - Deceased) (Environment and Land Appeal E006 of 2024) [2025] KEELC 6770 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that paying for land and living on it for decades creates a trust, even without the title.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the two parties had the capacity to institute their respective claims.
- 2.If the appellant pleaded and proved the creation of and existence of a trust.
- 3.Whether the appellant deserved the relief sought.
- 4.If the respondent pleaded and proved any trespass and infringement on his right to property, to deserve eviction orders.
- 5.If the respondent was entitled to the reliefs sought in the counterclaim.
- 6.Whether the appeal has merit.
Key legal issues
#Whether a trust was pleaded and proved
The appeal court found that a constructive trust and proprietary estoppel arose from the 1978 sale agreements, payment of purchase price, and continuous exclusive occupation from 1985 to 2022.
The appellant produced sale agreements dated 15/3/1978 and 23/8/1987 together with acknowledgment notes, and exclusive, uninterrupted possession from 1985 was undisputed. The registered owner vacated in 1985, sanctioned the entry, and between 2003 and 2013 took no successful recovery proceedings. These facts manifested promise, reliance, detriment, unconscionability and unjust enrichment, satisfying the ingredients of constructive trust and proprietary estoppel under equity and the Land Registration Act.
Whether the respondent's reliance on eviction orders and trespass succeeded
The counterclaim failed; the eviction decree relied on had been quashed or had expired under the limitation regime, and no valid recovery proceedings between 2013 and 2022 were proved.
The amended eviction order predated the quashed Land Disputes Tribunal award. A decree expires after 12 years under Section 4(4) of the Limitation of Actions Act. The deceased's own pleadings admitted no recovery proceedings after 2009, and DW1 confirmed consensual entry and occupation. Trespass under Section 3(3) of the Trespass Act required unjustified entry interfering with immediate exclusive possession, which was not established.
Whether the trust claim was defeated by limitation
Section 20 of the Limitation of Actions Act does not apply to actions by a beneficiary under a trust, so the trust claim was not statute-barred.
Section 20 exempts actions by beneficiaries under trust in trust property. Case law cited establishes that Section 20(2) does not apply to customary trusts, and Section 3(7) of the Law of Contract Act excepts oral land sale contracts coupled with part performance for agreements before June 2003, preserving the appellant's claim despite the 1976-78 transactions.
Legal principles established
#- A constructive trust may be found from a sale of land coupled with payment of purchase price, part performance and exclusive possession, constituting an overriding interest.
- A court decree expires after 12 years under Section 4(4) of the Limitation of Actions Act, and post-judgment proceedings thereafter are statute-barred.
- A party who wishes to rely on limitation as a defence must plead it in the defence.
Court orders
#- 1.The appeal is allowed.
- 2.The judgment of the trial court dismissing the appellant's claim and allowing the respondent's counterclaim is set aside.
- 3.Costs of the appeal and at the lower court to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Kitale
- Not stated (adjudicated suit arising from Kitale PMC Land Case No. 20 of 2006 history)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the trial court's judgment dated 12/2/2024
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.
My finding is that the trial court erred in law and in fact in dismissing the appellant's claim and allowing the respondent's counterclaim. The appeal is hereby allowed. Costs of the appeal and at the lower court to the appellant.
the sale agreements produced by the appellant, coupled with undisputed evidence of the exclusive occupation of the land by the deceased after the registered owner vacated in 1985, demonstrate the elements of proprietary estoppel and constructive trust, namely, promise, reliance, detriment, unconscionability, confidential relationship, and unjust enrichment.
In view of Section 4(4) of the Limitation of Actions Act, I find the defence by the respondent was incompetent or lacking merit; otherwise, such a decree had either become statute-barred or was quashed by a valid superior court order.
The role of an appellate court of the first instance is to re-appraise, review, rehearse, and re-establish the facts and evidence of the trial court, come up with independent findings as to facts and the law, while giving credit to the trial court, which had the occasion to see and hear the witnesses firsthand.
Issues in the judgment
#Judgment alternates dates for the sale (1976 in pleadings/submissions vs 1978 in the cause of action as pleaded) and the eviction order (3/11/2019 in exhibits list vs 3/11/2009 in analysis).
Sale price inconsistently stated as Kshs. 6,000 and Kshs. 3,000 in the judgment.
Paragraph 64 states the deceased pleaded no recovery proceedings at paragraph 16 of the plaint, though the plaint was the appellant's pleading; the paragraph appears to refer to the deceased's pleadings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kembo (Appealing as the Administrator of the Estates of Agustino Okwahela Kembo - Deceased) v Namukuru (Suing in Her Capacity as the Administrator of Joshua Mukenya Mutokaa - Deceased) (Environment and Land Appeal E006 of 2024) [2025] KEELC 6770 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6770/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.