Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Appeal No. E039 of 2024

Oyugi v Registered Trustee, Catholic Diocese of Kisumu (Environment and Land Appeal E039 of 2024) [2026] KEELC 4759 (KLR)

Environment and Land Court
24 July 2026
7,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner won his appeal to evict a church that stayed on his land after permission was revoked, because the church never paid the agreed purchase price.

What this practically means

#

Executive summary

#
The Appellant appealed against the judgment of Hon. J.P. Nandi (SPM) of 23 September 2024 in Bondo PMCELCC No. 20 of 2018, which had dismissed his claim for eviction of the Respondent church from parcel SIAYA/NYAGUNDA/3655. The trial magistrate had found no trespass and held that the church's long occupation gave it equitable rights before adjudication. On appeal, the ELC at Siaya framed three issues: trespass, the Respondent's claim to a constructive trust or overriding interest, and costs. The court held the Appellant's title valid, resting on the adjudication objection decision in his favour that became final under the Land Adjudication Act, and on Justice Kibunja's unappealed judicial review judgment quashing the nullification of those proceedings. It found the church's initial entry was pursuant to a 1976 arrangement to pay KShs. 50,000/-, which was never paid; the institution of suit in 2011 revoked any consent, so continued occupation was trespass. The constructive trust and overriding interest claims failed because they were unpleaded, the unsigned 1976 agreement offended Section 3(3) of the Law of Contract Act, no consideration was paid, and no wrongdoing or unjust enrichment by the Appellant was established. The trial magistrate was faulted for deciding an unpleaded issue. The appeal was allowed, the trial judgment set aside, the Respondent ordered to vacate within 180 days (with a 90-day window to negotiate formalisation), and the Appellant awarded costs of both the appeal and the lower court suit.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent trespassed into the Appellant's land
  2. 2.Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal
  3. 3.Who bears the costs of this Appeal

Key legal issues

#
01

Whether trespass was properly pleaded and proved

Holding

Trespass was pleaded; the initial consensual entry became trespass once permission was revoked, as evidenced by the 2011 suit seeking removal.

Reasoning

The Plaint expressly alleged trespass with particulars, and the Defence denied it as outrageous, so the issue was properly before the court. The varying accounts showed a 1976 arrangement for KShs 50,000/- payment. The Appellant's relentlessness in suing from 2011 proved revocation of any permission, making the Respondent's continued presence trespass under Section 3 of the Trespass Act.

p. 20
02

Validity of the Appellant's title

Holding

The Appellant's title, arising from adjudication objection proceedings, is valid; the nullification letter was itself declared null and the Kibunja judgment upholding the title was never overturned.

Reasoning

The Adjudication Objection decided in the Appellant's favour on 12.04.2001 became final as no appeal under Section 29 of the Land Adjudication Act was filed. Justice Kibunja's judicial review judgment dismissed the Respondent's challenge and declared the Lands Officer's nullification letter ultra vires. No ground under Section 26 of the Land Registration Act (fraud, illegality, unprocedural acquisition) was proved against the title.

p. 16
03

Whether the Respondent could claim a constructive trust or overriding interest on appeal

Holding

No; the claim was unpleaded and, in any event, fails because no consideration was paid and no wrongdoing or unjust enrichment by the Appellant was shown.

Reasoning

The trial magistrate erred in making findings on an unpleaded equitable issue. Even considering the merits, the 1976 agreement was unsigned contrary to Section 3(3) of the Law of Contract Act and the purchase price was never paid. Macharia Mwangi was distinguished because there purchasers had paid value; here the Respondent is not a bona fide purchaser, and overriding interests cannot accrue before the Appellant's first registration in 2010.

p. 30

Legal principles established

#
  • A first appellate court must reconsider both matters of fact and law, re-evaluating the evidence afresh while making allowance for the trial court's advantage of seeing witnesses' demeanour.
  • Entry onto land by consent becomes trespass once that consent/permission is revoked and the occupier remains.
  • A party cannot introduce entirely new causes of action or fresh reliefs at the appeal stage; appeals are confined to issues pleaded, tried and determined below.
  • A court should not raise and decide issues no party pleaded, unless evidence was led leaving the issue to the court.
  • A constructive trust cannot arise where no wrongdoing is established and no unjust enrichment would be prevented; non-payment of consideration negates it.

Court orders

#
  1. 1.Judgment of the trial court delivered on 23rd September 2024 in Bondo PMCELCC No. 20 of 2018 set aside and replaced
  2. 2.Respondent to remove its property from and vacate parcel SIAYA/NYAGUNDA/3655 within 180 days, failing which an order of eviction shall automatically issue without further reference to the court
  3. 3.Parties at liberty within 90 days to negotiate a settlement for formalisation of the Respondent's stay on the suit property, time not stopping for the 180-day order
  4. 4.Appellant to have the costs of the appeal as well as the costs of the suit in the lower court

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Bondo Principal Magistrate's Court
PMCELCC No. 20 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts (Environment and Land Court Act); appeal against judgment and decree of J.P. Nandi (SPM)

Relief refused

#

Formal recognition of the Respondent's constructive trust or overriding interest over the suit land

The claim was unpleaded and in any event fails because the agreed purchase price was never paid

p. 30

Costs

The Appellant shall have the costs of this appeal as well as the costs of the suit in the lower court.

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.

1) That the Respondent herein shall within One Hundred & Eighty (180) days from the date hereof remove its property from and vacate the Appellant's land known as parcel no. SIAYA/ NYAGUNDA/3655, failure to which an order of eviction shall automatically issue without further reference to this court.
p. 32Final orders - vacatur and automatic eviction
The upshot of the foregoing is that, I hereby find that the Appeal herein is merited. Consequently, the judgment of the trial court delivered on 23rd September, 2024 in Bondo Principal Magistrate Court PMCELCC No. 20 of 2018 is hereby set aside
p. 31Disposition
Consent having been revoked, the Respondent's continuing presence on the land does in fact amount to trespass.
p. 20Trespass after revocation of consent
It is a fundamental principle of the law that a party cannot introduce entirely new causes of action or fresh reliefs at the appeal stage.
p. 21No new causes of action on appeal
3) The Appellant shall have the costs of this Appeal as well as the costs of the suit in the lower court.
p. 32Costs order

Issues in the judgment

#
minor

Internal inconsistency in dates: the decision of the Adjudication Objection is stated as 12.04.2002 in one passage and 12th April 2001 in the quoted judicial review judgment

minor

Appellant's submissions dated 10.11.2025 and Respondent's dated 03.12.2025, while the appeal was certified ready on 14th July 2025 and judgment delivered 24th July 2026

minor

Typographical errors in citation ('Environment and Land Appeal 10 od 2023') and case header ('ELC APPEAL NO. E03039 OF024')

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Oyugi v Registered Trustee, Catholic Diocese of Kisumu (Environment and Land Appeal E039 of 2024) [2026] KEELC 4759 (KLR)", Case Analysis (2026). ELC Appeal No. E039 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4759/eng@2026-07-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.