Wakasiaka v Oingo

land within 6 months, while awarding the respondent general damages of Kshs 20,000/- for trespass and the costs of the suit. The appellant was dissatised with the judgment and has raised 11 grounds of appeal in a Memorandum of Appeal lodged on 3rd July 2020. The said grounds challenge three main aspects of the judgment, namely whether there was adverse possession of the suit land by the appellant; whether the appellant had demonstrated the existence of a trust over the suit land; and whether the respondent’s suit was res-judicata. It was the appellant’s allegation that the ndings by the trial Court on these aspects were not supported by the evidence or the law. 4. We heard the appeal on this Court’s virtual platform on 20th April 2026. Learned counsel Mr. Joseph Sichangi was present for the appellant, while learned counsel, Mr. Mamadi who was holding brief for learned counsel Mr. Shitsama appeared for the respondent. The counsel present highlighted their respective submissions dated 21st February 2022 and 18th April 2026 respectively. 5. In commencing the determination of this appeal, we are mindful that the duty of this Court as a rst appeal Court, as reiterated and set out in the decision of Selle and Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123. We shall accordingly reconsider the evidence adduced in the trial court, evaluate it, and draw our conclusion of facts and law; and we will only depart from the ndings by the trial Court if they were not based on the evidence on record; if the said Court is shown to have acted on the wrong principles of law as was held in Jabane v Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another v Shah (1968) EA 93. 6. It is opportune at this juncture to briey restate the parties’ respective cases as set out by their pleadings and testimony in the trial Court. The appellant’s case was that she entered into a sale agreement with the respondent on 17th December 1982, paid Kshs. 26,000/= being part of the purchase price, and took possession of the land where she had lived for over 30 years. The appellant claimed that the respondent refused to accept the balance of the purchase price and stated she had occupied the land peacefully for over 40 years. She added that a previous eviction suit led by the respondent in Bungoma CMCC No. 545 of 2004 was dismissed, and that although the respondent attempted to refund the purchase price, her title had already been extinguished by time. 7. On her part, the respondent claimed to be the registered proprietor of the suit land and conrmed that she sold 3.3 acres thereof to the appellant for Kshs. 29,000/=, of which only Kshs. 26,000/= was paid, leaving a balance of Kshs. 3,000/=. The respondent asserted that the appellant breached the agreement by failing to pay the balance, prompting a refund which the appellant refused to collect. Further, that the appellant’s occupation was not continuous, peaceful, or uninterrupted due to ongoing litigation, and therefore the claim for adverse possession was unfounded. The respondent made reference to previous suits between the parties, including Bungoma CMCC No. 104 of 1990, which was led by the appellant for specic performance and dismissed for want of prosecution, and Bungoma CMCC No. 545 of 2004, where both the respondent’s eviction claim and appellant’s counterclaim for adverse possession were dismissed on 13th October 2010 for lack of jurisdiction by the trial Court. The respondent also alleged that she opposed the appellant’s attempt to bury her son on the land in Bungoma CMCC No. 391 of 2017. 8. The trial Court in its determination examined the applicable principles of law as regards adverse possession, trusts and trespass, and reached the conclusion that the appellant had not demonstrated that her possession and occupation of the suit land was peaceful which is a key ingredient in a claim for adverse possession, since it was clear from the record that the parties were already in Court litigating over the suit land in Bungoma CMCC No. 104 of 1990 in 1990, 8 years after their agreement. Further, it was common ground that the parties have had disputes over the appellant’s occupation of the suit land before the expiration of the statutory 12 years’ limitation period. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 2

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9. The trial Court further found that it was unable to nd the existence of any constructive or resulting trust in favour of the appellant with respect to the suit land in the circumstances of the case, as there was no evidence to suggest that the respondent took any advantage of her position as the proprietor of the suit land to acquire any benet for herself with respect to the suit land. In addition, any party seeking a trust, being an equitable remedy, must approach the Court with clean hands, and having breached the sale agreement dated 17th December 1982 by failing to pay the balance of the purchase price of Kshs 3,000/=, the appellant could not demand an equitable remedy. 10. Lastly, that the respondent’s suit was not res judicata for the reason that a claim of adverse possession could not have been determined by the subordinate Court; the judgment dated 13th October 2010 by the Chief Magistrate’s Court was a nullity as the said court was not competent and could not therefore operate as res judicata ; and since it is clear from section 7 of the Civil Procedure Act that for res judicata to apply, the previous suit must have been heard in a competent Court. The trial Court consequently found that the appellant may have entered the suit land as a purchaser but from the moment she breached the sale agreement in 1983, she became a trespasser. Accordingly, the respondent, being the registered proprietor of the suit land, and entitled to all the rights and privileges that belong or are appurtenant thereto under section 24 of the Land Registration Act and Article 40 of the Constitution, was therefore entitled to an order to evict the appellant from the suit land. 11. The rst issue for determination before us arising from these ndings is whether there was adverse possession of the suit land by the appellant. It was not disputed by both counsel that the respondent was the registered proprietor of the suit land and by an agreement dated 17th December 1982, she sold the suit land to the appellant for a consideration of Kshs 29,000/-. Further, the respondent paid Kshs 26,000/-, leaving a balance of Kshs 3,000/- and commenced occupation of the suit land. Counsel for the appellant challenged the nding by the trial Court that the appellant’s occupation and possession was not peaceful by dint of the suit the appellant led in Bungoma CMCC No. 104 of 1990 for specic performance of the agreement, which was dismissed for want of prosecution. 12. Counsel submitted that the said suit did not interrupt or breach her continuous, open and peaceful occupation, and that the suit that sought to dispossess and evict the appellant was led in Bungoma CMCC No. 545 of 2004. Further, that the appellant having taken possession in 1982, she had been in open, notorious and continuous occupation for 22 years from 1982 to 2004 by the time the suit was in Bungoma CMCC No. 545 of 2004 led. Therefore, the appellant’s occupation from 1982 to 2004 was open, notorious, and continuous, and the subsequent suits, having been dismissed for want of jurisdiction and prosecution, could not defeat the doctrine of adverse possession, which had extinguished the respondent’s title and created an overriding interest in her favour. 13. Counsel for the respondent, cited various judicial decisions on the requirements that a person seeking the relief of adverse possession must establish, namely that his or her occupation of the suit land is not by force, secrecy or persuasion and that the occupation must also be open, peaceful, uninterrupted, and with the knowledge of the owner. He submitted that the appellant has not satised all the ingredients from the evidence on record, particularly that her occupation on the suit land has been without interruptions. Furthermore, the parties have been litigating on the suit land that since 1990 up to date, and in any event the appellant did not complete payment of the purchase price and adverse possession could therefore not arise. 14. We have considered the arguments made by counsel. It is settled that the legal requirements to establish adverse possession is the actual adverse entry, and open, continuous, and exclusive possession of land https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 3

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by the adverse possessor for a minimum of twelve years, as against the registered owner. This Court in this regard held in the case of Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, that time starts running from the moment a proprietor is dispossessed of his land or when his title is challenged, rather than merely from the date of occupation. The main question that therefore needs to be answered in the present appeal is whether the suits led by the appellant and respondents interrupted the open, continuous and exclusive possession by the appellant. 15. In this regard, this Court held in Githu v Ndeete [1984] KLR 776 “that time ceases to run when the owner asserts his right by taking legal proceedings or by an eective entry into the land or when his right is admitted by the adverse possessor.” Likewise, this Court explained as follows in Wambui Gikwa v Paul Kimani Muraba [2016] KECA 71 (KLR): “ We understand the law to be that time stops running in favour of an adverse possessor either when the title holder asserts his right to the land in question or when the adverse possessor admits the title holder’s right. As set out in Kirutu -v- Kabura (supra) assertion of a title holder’s right can be through the institution of legal proceedings to regain possession. Whether or not the title holder succeeds in such proceedings is another matter altogether. The fact that such proceedings are instituted and prosecuted is in our view, a clear indication of the title holder exerting his right to the land interrupting possession of the adverse possessor.” 16. We have considered the legal eect on the adverse possession of the suit land, of the case led by the appellant in Bungoma CMCC No. 104 of 1990 seeking specic performance of the contract of sale entered into with the respondent. According to the appellant, the said suit did not stop time from running since it was not seeking her eviction. It is notable from the pleadings of that suit, which were on record, that the appellant sought an order that the respondent signs the transfer forms and transfers the suit land to her, and by seeking this orders, the appellant thereby acknowledged the respondent’s right to the suit land as the registered owner and seller thereof. As a result, the period of adverse possession was thereby interrupted and stopped running as established in Githu v Ndeete (supra), and only started to run afresh after dismissal of the suit. This dismissal was pleaded by the respondent in her plaint as having taken place on 7th December 2001, and a decree to this eect was also on the record. 17. Accordingly, while any possession of the suit land by the appellant after the dismissal of the suit on 7th December 2001 was evidently not consensual and was adverse to the respondent’s title, by the time the respondent led Bungoma CMCC No. 545 of 2004, 12 years of possession of the suit land by the appellant had not passed. The appellant therefore could not have acquired adverse possession. We accordingly nd that the learned trial Judge therefore did not err in his ndings that there were disputes over the defendant's occupation of the suit land before the expiration of the statutory 12 years' limitation period, and that the appellant was not entitled to orders that he is entitled to the suit land by way of adverse possession. 18. On whether the appellant had demonstrated the existence of a trust over the suit land, counsel for the appellant denied any inability on the part of the appellant to clear the balance of the purchase price, and contended that the respondent deliberately frustrated completion of the transaction by refusing to accept the balance after resolving her nancial diculties. Further, that the appellant instituted the suit in 1990 after the respondent refused to accept the balance of Kshs. 3,000/-, while the respondent led the eviction suit in 2004, being 22 years after the sale agreement and payment of Kshs. 26,000/-. It was therefore counsel’s position that the prolonged period of occupation justied the application of equitable remedies, including implied, resulting, or constructive trust. Reliance was placed on the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 4

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case of Willy Kimutai Kitilit v Michael Kibet CA Civil Appeal No 51 of 2015, for the proposition that the current Constitution had elevated the doctrines of equity and trust to a higher status, unlike the previous position under the Judicature Act, and the doctrines could now be invoked in the Courts, in appropriate circumstances. 19. The position taken by the counsel for the respondent was that a constructive trust only exists where the full purchase price is paid and the purchaser has been put into possession without any force whatsoever, but in the current case that parties were in disagreement as regards breach of the sale agreement and pertinent issues have not been resolved such acquisition of the Land Control Board consent. It was his case that the appellant failed to prove a case of trust. 20. We note in this regard that the appellant’s pleading in the Originating Summons dated 26th May 2015 was “that the Respondent be found to be holding title to parcel No. E.Bukusu/S/Kanduyi/2016 in trust for the applicant and that it be cancelled”. Black’s Law Dictionary, 9th Edition denes a trust as “the right, enforceable solely in equity, to the benecial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benet of a third party (beneciary).” Furthermore, the types of trusts that can arise with respect to land are explained in Elements of Land Law, 5th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11 as follows : “Trusts relating to land can be classied as either express trusts or implied trusts, the latter category subdividing into further categories of resulting and constructive trusts ... Consistently with the characteristic preoccupation of equity, the primacy of intention is exemplied in each of these three cases of trust. The trust is the express very embodiment of an intention explicitly formulated by a legal owner regarding the benecial ownership of his land. Implied trusts arise by operation of law, but do so against a background of actual or presumed benecial intentions as to benecial title. Yet, although premised alike upon intended benecial ownership, the resulting trust and the constructive trust have traditionally enjoyed distinct spheres of operation.” 21. In this respect, it was explained by this Court in Archer & another v Archer & 2 others [2023] KECA 298 (KLR) that the main requirements for a resulting trust to arise are the intention of benecial ownership and quantiable contributions of money directly channelled towards the acquisition of a property at the point of purchase. Where there are other kinds of contributory activity, whether before or after the acquisition of title, these are assessed in terms of a constructive trust. Resulting trusts cannot therefore be founded on intentions, events or circumstances which arise after the date of purchase and acquisition of title. The only implied trust that could therefore arise in the circumstances of this appeal is a constructive trust. 22. The situations when a constructive trust can be imported into a land sale agreement to defeat a registered title was discussed by the Supreme Court of Kenya in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR). The Supreme Court, while recognising the decisions by the Court of Appeal in In Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet, [2018] eKLR, that in matters involving the sale of land, the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable subject to the circumstances of the case, held as follows: 86. We have found that the doctrines of equity are part of our laws by virtue of section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at article 40, this right is not absolute. Article 24 provides that a right cannot be limited except https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 5

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by law. We have also established that, while sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certicate of title is conclusive evidence of proprietorship, section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust. 87. 23. 24. 25. We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore nd that a constructive trust can be imported into a land sale agreement to defeat a registered title.” What then were the circumstances of this appeal? The appellant averred as follows in her adavit sworn on 26th May 2015 in support of the originating summons of even date: 1. …. 2. That I entered into an agreement for sale of land with the Respondent herein way back on the 17/12/1982 and I paid fully Ksh. 26,000 before the rm of ONYINKWA & CO. ADVOCATES. 3. That upon execution of the said agreement for the entire parcel of land known as E.Bukusu/ S/Kanduyi/2016 measuring (0.64) Ha I started farming the same then later on I constructed a home and started residing on the same for now over 30 years. 4. The Respondent then brought a suit to evict me from the suit land in 2004 vide Bungoma Chief Magistrate Court CC No. 545 of 2004 which suit was heard and dismissed. 5. That my eorts to procure title could not bear fruit hence this suit as the land is still registered in the names of the Respondent who insists that she wants to refund the purchase price. Find copy of ocial search marked CAW-1. 6. That ever since I bought the suit land the Respondent fully knew and was aware of my occupation hence attempting to refund the purchase price of Ksh. 26,000 after 30 years is a mockery since the value of the land is now millions of shillings. The respondent on her part pleaded as follows in the plaint dated 13th December 2017: 3. At all material times the Plainti was and is the registered proprietor of the parcel of land known as LR NO. E.Bukusu/S.Kanduyi/2061. 4. In or about 1982 the Plainti purported to sell a portion of the suit land measuring 3.3 acres to the defendant at a sum of Kshs29,000/=. 5. In breach of the Agreement the defendant paid Kshs 26,000/= leaving Kshs 3000/= as the balance These averments were reiterated in the respondent’s statement of even date. During the trial in the ELC, the respondent admitted in her testimony that she had nancial problems in 1982 when she sold the land, and she refunded the money paid by the appellant of 26,000/= but the appellant refused to accept it. The appellant, on the other hand, testied that she was ready to pay the balance, but the respondent refused to accept payment, while alleging that the title to the land was in the bank. It is also instructive in this respect that the appellant did plead both in her suit and her counterclaim in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 6

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Bungoma CMCC No. 545 of 2004 that she was ready and willing to pay the balance of Kshs 3,000/=, whilst the respondent made no reference to the payment or refund in her suit in in Bungoma CMCC No. 545 of 2004. 26. Our analysis leads us to the conclusion that the appellant paid a substantial part of the purchase price for the suit land, which the respondent later sought to refund but which refund was not accepted by the appellant. While the trial Court in its evaluation of the evidence adduced reached a nding that there was breach of the agreement by the appellant in failing to pay the balance of the purchase price of Kshs 3,000/=, it is our view that it would be unconscionable and unjust for the respondent to retain legal ownership of the suit land given the substantial part payment made by the appellant; the conicting evidence by the appellant and respondent as regards the cause of non- payment of the balance of the purchase price of Kshs 3,000/=, particularly given that that the suit led by the appellant for specic performance in Bungoma CMCC No. 104 of 1990 did not address the merits of the arguments raised by the parties as regards frustration and breach of the agreement; and the circumstances in which the substantial part payment was made, and later sought to be refunded by the respondent after lapse of a considerable period of time of occupation of the suit land by the appellant. To nd otherwise in our view would not only be inequitable to the appellant, but also result in unjust enrichment of the respondent. The result is that the appellant did obtain a benecial interest in the suit land arising from these circumstances. 27. The last issue arising from the grounds of appeal was whether the respondent’s suit was res judicata. The appellant’s position was that the respondent’s suit in Bungoma CMCC No. 545 of 2004 was heard and dismissed on merits, and that the appellant specically pleaded the issue of res judicata in her defence. Counsel contended that the respondent had previously instituted Bungoma CMCC No. 545 of 2004 seeking her eviction and a refund of the purchase price without interest, and the suit was fully heard by the Chief Magistrate’s Court, which dismissed both the eviction claim and the counterclaim for adverse possession, while observing that it lacked jurisdiction to determine the counterclaim for adverse possession. Counsel maintained that the Court did not decline jurisdiction over the eviction claim and that argued that the subsequent suit by the respondent for eviction was res judicata. 28. This position was opposed by the respondent’s counsel, who submitted that the Chief Magistrate’s court was incompetent to determine the suit in Bungoma CMCC No. 545 of 2004, as well as the counterclaim therein. According to counsel, the dispute before the Chief Magistrate’s Court concerning adverse possession and eviction was not substantively determined but was dismissed on a technicality. 29. We have perused the judgment on record delivered in Bungoma CMCC No. 545 of 2004 on 1st October 2010 by the Chief Magistrate’s Court. The said Court made the following ndings on the respondent’s claim for eviction therein: “ I also agree with the defence that the orders sought of eviction are well taken care of by s/3(1) of land disputes tribunal. The dispute related to trespass. The plainti did not grant a consent to the occupation. The plainti has proved ownership that title deed produced as exhibit 1. The proper prove (sic) plainti would have taken was to le the suit before the land disputes tribunal for determination. The act vested jurisdiction on matters involving trespass to land from a magistrate court. The prayer cannot therefore be entertained by this court for lack of jurisdictions which in this case is limited by statute..” 30. The Chief Magistrate’s Court also found that it had no jurisdiction to entertain the appellant’s counterclaim for adverse possession, which jurisdiction was then vested in the High Court. The elements of a plea of res judicata as set out in section 7 of the Civil Procedure Act, and which were https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 7

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summarised by the Supreme Court of Kenya in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) ARE as follows: “ We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a. There is a former Judgment or order which was nal; b. The Judgment or order was on merit; c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the rst and the second action identical parties, subject matter and cause of action.” 31. The Supreme Court further claried in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) that the elements set out above are to be conjunctive rather than disjunctive and it must be demonstrated that there was a former judgment which was nal, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action. In the present situation, despite the fact that the parties and issues in Bungoma CMCC No. 545 of 2004 were the same as in those in the instant appeal, the Chief Magistrate’s Court was in this regard emphatic in the judgment delivered in Bungoma CMCC No. 545 of 2004 that it had no jurisdiction to address the merits of the suit. The suit subsequently led by the respondent in Bungoma ELC No. 161 of 2017 for eviction was accordingly not res judicata. 32. In conclusion therefore, the appellant’s appeal is merited to the extent that we have found that she has a benecial interest in the suit land, arising from the circumstances in which the payment of a substantial portion of the purchase price for the suit land was made, and is therefore not without remedy. Under Rule 33 of the Court of Appeal Rules of 2022, we have the power, upon hearing an appeal, to conrm, reverse or vary the decision of the trial court, to remit the proceedings to the trial court with such directions as may be appropriate, or to order a new trial, and to make any necessary incidental or consequential orders, including orders as to costs. In this respect, the appellant having paid 26,000/= out of a purchase price of 29,000/= is therefore proportionally entitled to a benecial interest of 90% of the suit land. 33. 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. In its place, we allow the appellant’s counterclaim to the extent of the following orders: 1. A declaration that the appellant holds a benecial interest in the parcel of land known as E. Bukusu/S/Kanduyi/2016 measuring (0.64) that is registered in the names of the respondent herein. 2. A declaration that the parcel of land known as E. Bukusu/S/Kanduyi/2016 is held in trust by the respondent herein, as a constructive trustee for the appellant. 3. The parties’ respective shares of the benecial interest in the parcel of land known as E. Bukusu/S/Kanduyi/2016 that is registered in the names of the respondent herein is hereby apportioned and quantied as follows: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 8

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34. a. The appellant’s share is 90% b. The respondent’s share is 10% 4. The respondent shall within 30 days of this judgement surrender to the Land Registrar Bungoma the original title deed to the Land Parcel No. E. Bukusu/S/Kanduyi/2016 and execute all the necessary documents to facilitate the registration of 90% of the said land in the name of the appellant and the registration of the balance of 10% in the name of the respondent. 5. In default of order [4] above, the Bungoma Land Registrar and the Bungoma County Surveyor shall partition the land parcel E. Bukusu/S/Kanduyi/2016 notwithstanding the absence of the original title deed and the Deputy Registrar of the Environment and Land Court at Bungoma shall execute all such documents on behalf of the appellant. 6. The appellant shall meet the costs of the partition and the other related costs. 7. 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. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF MAY, 2026. P. NYAMWEYA. ……………………………… JUDGE OF APPEAL R. NGETICH ……………………………… JUDGE OF APPEAL RADIDO S.OKIYO ………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2042/eng@2026-05-22 9

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