Oyugi v Registered Trustee, Catholic Diocese of Kisumu (Environment and Land Appeal E039 of 2024) [2026] KEELC 4759 (KLR)
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#A Kenyan landowner won his appeal to evict a church that stayed on his land after permission was revoked, because the church never paid the agreed purchase price.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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent trespassed into the Appellant's land
- 2.Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal
- 3.Who bears the costs of this Appeal
Key legal issues
#Whether trespass was properly pleaded and proved
Trespass was pleaded; the initial consensual entry became trespass once permission was revoked, as evidenced by the 2011 suit seeking removal.
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.
Validity of the Appellant's title
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.
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.
Whether the Respondent could claim a constructive trust or overriding interest on appeal
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.
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.
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.Judgment of the trial court delivered on 23rd September 2024 in Bondo PMCELCC No. 20 of 2018 set aside and replaced
- 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.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.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.
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
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.
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
Consent having been revoked, the Respondent's continuing presence on the land does in fact amount to trespass.
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.
3) The Appellant shall have the costs of this Appeal as well as the costs of the suit in the lower court.
Issues in the judgment
#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
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
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.