Tarko & another v Okello (Appeal E036 of 2024) [2026] KEELC 1047 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land buyer's title because her paperwork was flawed, recognizing the Tarko family's long-standing ownership through a constructive trust.
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 trial court erred in upholding the Plaintiff as the lawful owner of the suit property
- 2.Whether the trial court erred by failing to invoke the doctrine of trust in favor of the Appellants who were the 1st and 2nd defendants in the main suit
- 3.Whether the counterclaim should be upheld
- 4.Costs of this appeal
Key legal issues
#Validity of the Plaintiff's land sale agreement and title
The acknowledgement note was not signed by the purchaser or the vendor, the transfer documents were never produced, and the title was therefore procured unprocedurally; the trial court erred in upholding the Plaintiff as lawful owner.
Section 3(3) of the Law of Contract Act applied to the 2021 transaction, which was executed after 2003. The acknowledgement note was executed only by the vendor's witness, with no Power of Attorney under section 48 of the Land Registration Act authorising her. The transfer documents listed were never produced in evidence, leaving unexplained gaps in how title issued.
Applicability of section 3(3) of the Law of Contract Act to the Defendants' pre-2003 agreement
The Tarko–Ratanga agreement of 1993–1995 predates section 3(3) and the trial court erred in applying that provision to invalidate it.
The trial court had found the Defendants' agreement invalid for non-compliance with section 3(3). On a first appeal the court reassessed the evidence and found the arrangements occurred around 1993–1995, before section 3(3) came into effect in 2003, relying on Peter Mbiri Michuki v Samuel Mugo Michuki.
Whether a constructive trust arose in favour of the Tarko family
A constructive trust was created; Ratanga received payment, allowed the Tarko family possession for about 27 years, and his conduct was unconscionable.
Relying on Twalib Hatayan and the Supreme Court's decision in Shah v Mombasa Bricks & Tiles, trusts are overriding interests under section 28 of the Land Registration Act capable of defeating registered title. Ratanga admitted receiving payment and the family's long possession; equity therefore intervened to impose a constructive trust in favour of the estate of Lucas Tarko Mbala.
Legal principles established
#- Section 3(3) of the Law of Contract Act does not apply to contracts for the disposition of land entered into before it came into effect in 2003
- A certificate of title may be impeached where it was acquired illegally, unprocedurally or through a corrupt scheme, and unexplained gaps in the conveyance process suffice to raise that inference
- A constructive trust can be imposed to defeat a registered title where it would be unconscionable for the legal owner to retain the property
Court orders
#- 1.The appeal succeeds and is allowed
- 2.The Judgment and Decree in CMC ELC E015 of 2022 at Ukwala is set aside and substituted with the order dismissing the Plaintiff's claim
- 3.The Counterclaim in the trial court is upheld and judgment entered for the 1st and 2nd Defendants as Plaintiffs in the Counterclaim
- 4.An order for the cancellation of the title issued to Vivian Anyango Okello in September 2021, substituting the same with the name of Lucus Tarko Mbala (Deceased) by the Land Registrar Ukwala
- 5.No orders as to costs on both the trial court proceedings and the appeal; each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Ukwala Senior Resident Magistrate's Court
- ELC Case No. E015 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Senior Resident Magistrate's Court (Memorandum of Appeal dated 9/10/2025)
Relief refused
#Costs of the appeal and the trial court to the Appellant as the successful party
The court declined costs to enable peaceful living between Ratango and the Appellants
Costs
No orders as to costs on both the trial court proceedings and the appeal; each party to bear their own 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.
Therefore the Judgement and the Decree in CMC ELC E015 of 2022 at Ukwala be and is hereby set aside and substituted with the order dismissing the Plaintifi's claim.
The Counterclaim in the trial court is upheld and judgement is entered for the 1st and 2nd Defendants as Plaintifis in the Counterclaim to the extent that an order is hereby issued for the cancellation of Title Issued to Vivian Anyango Okello issued in September 2021 and substituting the same with the name of Lucus Tarko Mbala (Deceased) by the Land Registrar Ukwala.
As to costs there shall be no orders as to costs on both the trial court proceedings and the present appeal. Let each party bear their own costs to enable peaceful living between Mr. John Otieno Ratango and the Appellants.
Clearly there were unexplained gaps pointing to illegalities in the registration of the Plaintifi as the absolute proprietor. It is not just enough to dangle a title.
I find that a Constructive Trust was created and the title held by the Plaintifi cannot stand.
Issues in the judgment
#The memorandum of appeal is dated 9/10/2025 while the text elsewhere refers to submissions dated 9/10/2024, an internal inconsistency in dates
The judgment refers to the originating plaint as dated 4th April 2024 although the appeal concerns a plaint said elsewhere to predate a 2022 defence and counterclaim
The judgment states the counterclaim sought damages from John Ratanga but the appellant's prayer on appeal is that the counterclaim be upheld without Ratanga being a party to the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarko & another v Okello (Appeal E036 of 2024) [2026] KEELC 1047 (KLR)", Case Analysis (2026). Not stated (Appeal from Ukwala SRM ELC Case No. E015 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1047/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.