Okinyi v Ogallo & another (Environment and Land Appeal E026 of 2025) [2026] KEELC 3310 (KLR)

Page 2 of 37 Kaksingri/K/Waregi/2322 or the fence delineating the same. 2) General damages for trespass. 3) Costs or this suit together with interest thereon at the rate of 14% p.a. from the date of judgment until payment in full. 4) Such further and/or other alternative relief as this Honourable Court deems fit to grant. 2. In the suit, the Plaintiff pleaded that his deceased father was the proprietor of Land Parcel No. Kaksingri/K/Waregi/2322 and in the year 2020 the 1st Respondent trespassed into his land and started cutting down trees and claimed he was the proprietor of the land. 3. The 1st Respondent, then the Defendant, filed a Statement of Defence dated 28th August 2020 where he denied the contents of the Plaint in their entirety. He denied trespassing on the suit land and stated that in January 2008 he entered and settled on Land parcel Kaksingri/Kagutu/Waregi 632 with the full knowledge and blessings of both Mr. Siriakus Okinyi Onyango and Mr. James Ochieng Odoyo who had a purchasers claim over the same portion. Further, that the plaintiffs were 2|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 2 of 37

Page 3 of 37 aware that in 2005 their late father had sold the suit property to one James Ochieng Odoyo, who took occupation till 2008 when the land was lawfully handed over to defendant for occupation. Further, that during the life of Mr. Siriakus Okinyi Onyango, neither the “Old man” nor Mr. James Ochieng Odoyo challenged his quiet occupation of the said land parcel. 4. He averred that only after the death of Siriakus did the plaintiffs start destroying his trees, something he had to report to the authorities. This led to a meeting on 22 nd May 2020 of a meeting of elders convened by the area chief where the 1st plaintiff recognized the defendant as owner of the suit parcel of land, only complaining that defendant had allowed his trees to overgrow to the side of the plaintiffs. Reply to statement of defence 5. The Plaintiff filed a Reply to the Statement of Defence. It was dated 3rd October 2020. He reiterated the contents of the Plaint and urged that the Statement of Defence ought to be dismissed with costs. Interested Party’s Statement of Defence and Counterclaim 3|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 3 of 37

Page 4 of 37 6. The Interested Party filed a Statement of Defence and Counterclaim dated 13th January 2021. He denied the contents of the Plaint and urged that Land Parcel No. Kaksingri/K/Waregi/2322 could not be part of the Estate of Siriakus Okinyi Onyango because it was registered long after his death since any purported registration in the name of a deceased person is an illegality. Further, he stated that the deceased bought and occupied the land since the year 2005, first by himself and later through his friend William Ogalo (the defendant herein) which was LR No. Kaksingri/K/Waregi/632. Further, that the purported subdivision of the land by the plaintiffs to create Kaksingri/K/Waregi/2322 and subsequent registration in name of Siriakus Onyango Okinyi at a time when he was long dead was an illegality. 7. He averred that the land parcel occupied by the defendant was s LR. NO. Kaksingri/K/Waregi/632 which he purchased from the late Siriakus Onyango Okinyi and which now belongs to him through adverse possession. He held the view that if at all parcel No. Kaksingri/K/Waregi/2322 existed, it could form part of the estate of the late Siriakus Onyango Okinyi, the same having been registered in his name after his demise. 4|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 4 of 37

Page 5 of 37 8. He urged that the plaintiffs having filed the suit in their capacity as administrators of the Estate of Siriakus Onyango Okinyi, lacked capacity to deal with LR. NO. Kaksignri/K/Waregi/2322, the same not being part of the estate of the deceased. He urged the court to dismiss the suit. 9. Under the Counterclaim, he pleaded that he had been in occupation of the deceased’s land, namely, Land Parcel No. Kaksingri/K/Waregi/632, initially by himself and thereafter by his agent (the defendant), from the year 2005 having duly purchased the same from the plaintiffs’ father. It was registered in the name of the late Siriakus Okinyi Onyango. Further, he had enjoyed uninterrupted use of the land and that through adverse possession the land was now his. 10. He pleaded that the plaintiffs’ purported subdivision of land LR.NO. Kaksingri/Waregi/632 to create Kaksingri/K/Waregi/2322 and its registration in the name of the deceased, a year after the deceased had passed on, constituted an illegality and fraudulent transaction the basis upon which this suit had been instituted. Further, that there had never been any land parcel registered in the name of 5|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 5 of 37

Page 6 of 37 Siriakus Onyango Okinyi as LR. NO. KAKSINGRI/K/Waregi/2322. He prayed that the Plaint be dismissed with costs and judgment be entered in his favor in the following terms; a) The plaintiffs by themselves or through the agents be restrained from laying any claim to the portions of the deceased (Siriakus Onyango Okinyi) land measuring 1.5 acres and which the interested party has occupied since 2005, by himself and through the defendant. b) That the Land Registrar Homa Bay district be ordered by this court to cancel the title LR.NO. Kaksingri/K/Waregi/2322 issued after the deceased (Siriakus Onyango Okinyi) had passed on. c) That the interested party/counterclaimant be declared the rightful owner of the portion of Deceased’s (Siriakus Onyango Okinyi) land measuring 1.5acres and currently occupied by the defendant. d) That the Land Registrar Homa Bay district be ordered by this court to register in the name of the interested party/counter claimant all that portion of 6|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 6 of 37

Page 7 of 37 land measuring 1.5 acres being part of the estate of the late Siriakus Onyango Okinyi and currently occupied by the defendant. e) Costs of the suit be borne by the Plaintiffs. f) Interest on (b) and (c) above at court’s rates from the date of filing suit until payment in full g) Any other or further relief that this Honourable Court may deem fit and just to grant to the Defendant/ Counterclaimant. Defence to Counterclaim 11. The Plaintiffs filed a defence to the counterclaim where they denied the contents of the defence and further urged that the allegations contained therein were untruthful. They stated that Land Parcel No. Kaksingri/Kagutu/Waregi 2322 was still registered in the name of Siriakus Okinyi Onyango (deceased) and as such the Interested Party’s claim should be dismissed with costs. Plaintiff’s Defence to Counterclaim 12. The Plaintiffs filed a defence to the Counterclaim wherein they averred that they denied all the allegations in the Counterclaim, urging the court to dismiss the same. 7|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 7 of 37

Page 8 of 37 Hearing at the trial court 13. PW1 was the Plaintiff Okinyi Samuel who adopted his witness statement and response to the counterclaim as evidence in chief. He adopted his Statement and response to the Counterclaim as evidence in chief. He stated that his father, Siriakus Okinyi Onyango, was the registered proprietor of Land Parcel No. Kaksingri/Kagutu/Waregi 2322. He added that in 2020 William Ochieng Ogallo trespassed on the land and started cutting down trees upon the suit land, claiming proprietorship over the suit land. He stated that the defendant was a stranger to the estate of the deceased and has intermeddled in the estate of the deceased and has refused to abate his trespass despite several. 14. In his further witness Statement, he denied that his father sold land to William Ochieng Ogalo. That when he invaded the land, his father reported the matter to the Assistant Chief but no action was taken. The defendant went ahead and put up a structure in the form of a house by force after which he threatened his father. Further, that in 2013 he went to the Chief’s office to inquire more on how the stranger, William Ochieng Ogalo, had come to construct a structure in his 8|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 8 of 37

Page 9 of 37 father's piece of land but were given a deaf ear followed by a lot of threats from the police. 15. He stated that in 2015 the Police, through William Ochieng Ogalo, arrested Peter Okinyi Onyango over an allegation of vandalizing a boundary that never existed between his father (deceased) and William Ochieng Ogalo. His brother was later released. In 2018 William Ochieng Ogalo chased away Charles Okinyi Onyango by hurling stones at him from where Charles was doing harvesting. He then laid a false claim that Charles Okinyi stole maize from his granary. That in 2020 as they were preparing the land, the Defendant came from his house and started cutting the trees only to report the same to the Area Chief that they were the ones having done so. The trees were planted by his late father for the purpose of controlling soil erosion. 16. He stated that the mother title was under the deceased as the first registered proprietor to wit; Land Parcel No. Kaksingri/K/Waregi/632. Further, that the said deceased proprietor sold one acre to one John Nyamamba through the consent of the family in or around the year 2016 and the same was subdivided into three portions, being, Land Parcel 9|Page Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 9 of 37

Page 10 of 37 No. Kaksingri/K/Waregi/2322 in the name of Siriakus Okinyi Onyango comprising the suit property herein and trespassed upon by die defendant herein; Land Parcel No. Kaksingri/K/Waregi/2323 in the name of John Nyamba; Land Parcel No. Kaksingri/K/Waregi/2324 in the name of Siriakus Okinyi Onyango. He urged that the Chief who purportedly drafted and executed the annexed forged sale of land agreements, Zaddock Kisiara, was interdicted for corruption and forgery related offences. 17. During cross examination, he stated that he recorded two statements and stated the year 2020 in the first statement, and 2013 in the 2nd statement. That on the sale agreement of 2015, the buyer placed his thumbprint. That the consent bore the 2nd January 2016 on the date. It showed it was approved on 24th February 2016. His father’s name appeared thereon together with his thumbprint. He stated that he had looked at the Mutation Form which had 3 portions, and his father was to take two parcel numbers. His father's handwriting appeared but there were blank spaces in the Form. It showed no date or signature on the survey Form. He further stated that the land registrar did not sign the 10 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 10 of 37

Page 11 of 37 Mutation form. The official search showed that the year 2018 when his father was dead. 18. He testified that the title deed was issued to Peter Okinyi and he had not obtained Letters of Administration. His father usually informed him of his land transactions. 19. PW2 was Ludfina Atieno who stated that she was one of the wives of Siriakus Okinyi. He never sold any land to William Ochieng Ogalo or to James Odoyo. She never witnessed any land sale as purported by the two. That Siriakus used to seek for their consent wherever he wanted to do anything concerning the family. After William Ochieng Ogalo invaded the land, their children had been facing threats and arrests from police. 20. During cross examination, she stated that she knew William Ochieng Ogada but did not know James Odoyo. She stated that she was not aware of any sale of land by Siriakus. He would have informed them of he did it. That he sold the land to John Namamba in 2017 to cater for medical expenses. 21. The Plaintiffs closed their case. 22. DW1 was William Ochieng who stated that he had lived on the land of James Odoyo since 2008. That James’ brother 11 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 11 of 37

Page 12 of 37 married his sister. Further, the plaintiffs were aware of the time he entered the land and he had no problem with their father. He stated that when he was informed of tree cutting, he went and found Francis Oketch Charles, Dave Oyoo and Samuel Oyako. He reported the same to the chief and a meeting was held. That he also reported the matter to the police. 23. During cross examination, he stated that he gave Kshs. 22,000/= to James to give him the land. He stated that he knew the Sale Agreement of 15/1/2008. James Odoyo was the seller, and he was the buyer. They did the agreement at the Chief’s office. The Chief was Zaddock Kisiara. He signed the agreement and James was to give him the whole land known as Kagutu/Waregi/632. 24. DW2 was James Ochieng Odoyo who stated that he bought land from Siriakus Okinyi for 18,000/= on 5 th May 2005. That there was a Sale Agreement signed by the Chief on that date. That Siriakus Okinyi had no money for Succession proceedings, and Samuel Ooko and Fredrick Okinyi signed the Agreement. He urged that he got into the land and cultivated it. He gave out the land to William 12 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 12 of 37

Page 13 of 37 Ochieng. That was from the year 2008. He stated that he bought L.R. No. 632 and Peter did not inform him of a Succession Cause. He further stated that he did not know of parcel No. 2332. 25. During cross examination, he stated that parcel No. 2322 was created from the land he bought. That sub-division was done and there was an agreement dated 15 th January 2008. He knew of the buyer, William Ochieng and he was the seller. That the agreement was done at the Chiefs office and Ksh. 22, 000/= was paid. He urged that he had never been on the land since 2008. 26. DW3 was Zaddock Miregi Kisiara, the former chief of Kaksingri East Location. He added he knew the parties in this case. He testified that he knew the late Siriakus Onyango who had come to his office with one James. The deceased wanted to sell a piece of land to James Ochieng. He told them there had to be a reason for one to sell a land. The seller said he wanted to pay fees for his children. He then gave him a form to fill. He prepared the sale agreement and several other forms. The land was sold for 18,000/=. The money was paid in his presence. He further stated that he 13 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 13 of 37

Page 14 of 37 knew where the land was. James took possession of the land. That James no longer used the land. Instead, Ochieng Ogalo, the Defendant, now uses the land from the year 2008. 27. He further stated that James informed him that he wanted to give the land to Ochieng Ogalo. They went together to his office. He prepared another Sale Agreement on 15 th January 2008. They signed the agreement and money was paid. He drew the documents in his capacity as a chief. He stated that when Siriakus passed on, James did not go to complain over the land neither did his wives or children. 28. The defence closed their case. 29. The parties were directed to file submissions. They did. Upon considering said submissions, testimonies of the witnesses, attendant pleadings and the law, the learned trial magistrate entered judgement on 10th July 2025 in favor of the Defendant and the Interested Party against the Plaintiffs as follows; 1) A declaration that the interested party is the rightful owner of 1.5 acres of a parcel of land now known as Kaksingri/K/Waregi/2322 after the subdivision Kaksingri/K/Waregi/632. 14 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 14 of 37

Page 15 of 37 2) Permanent injunction is hereby issued restraining the plaintiffs, their, servant, and employees from interfering in any occupied portion way, with the defendant’s of Kaksingri/K/Waregi/2322 measuring 1.5 acres and which the interested party has occupied since 2005 by himself and later through the defendant. 3) The land registrar Homabay shall register in the name of the interested party the portion of land LR NO. Kaksingri/Waregi/2322 currently occupied by the defendant and measuring 1.5 acres. 4) Costs of this suit to the defendant and the interested party. 30. Being aggrieved by the judgement and decree, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 4th August 2025 premised on the following grounds: 1) The learned trial magistrate misdirected herself on several matters of law and facts. 2) The learned trial magistrate erred in the law of procedure and practice in presuming that her court had jurisdiction to hear and determine disputes 15 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 15 of 37

Page 16 of 37 concerning acquisition of title to land by adverse possession whereas Section 38 of The Limitation of Actions Act, states otherwise. 3) The learned Succession trial magistrate in allowing erred in law of the defendant and the interested party to intermeddle with Land Parcel No. Kaksingri/Kagutu-Waregi/632 or subdivisions thereof which is the property of Siriakus Okinyi Onyango, who is deceased without first obtaining a grant of Letters of administration to the deceased’s estate and administering the estate. 4) The learned trial magistrate erred in land law in holding that the sale of land, if any, between the late Siriakus Okinyi Onyango as vendor and James Ochieng Odoyo as purchaser was completed when the consent of the Land Control Board was not obtained, the fully attested transfer forms were not registered in the land registry and the registration fees and stamp duty were not paid at all as required in law. 16 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 16 of 37

Page 17 of 37 5) The learned trial magistrate erred in law on invoking the equitable doctrine of constructive trust in respect of land registered and still in the name of the deceased person when the said property has not been subjected to probate and administration. 6) The learned trial Magistrate erred in law of procedure and practice in treating an interested party as a substantial party in the suit and awarding to him costs of the suit when he is not the defendant in the suit. 31. The parties were directed to file submissions on the appeal. The Appellant filed submissions dated 26 th November 2025, whereas the Respondents filed submissions, through the firm of Messrs. Orondo Tuli & Company Advocates. Appellants’ Submissions 32. Learned Counsel for the Appellant cited Section 38(1) of the Limitation of Actions Act (cap 22 Laws of Kenya) and urged that the said section clearly gives jurisdiction only to the High Court. Furthermore the provisions of section 9(a) of the Magistrates’ Court Act, 2015 expressly states the extent of 17 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 17 of 37

Page 18 of 37 the jurisdiction of a Magistrates’ Court in Land and Environment cases. He urged that the case of P.C. Sugawara vs. N.E.M Kiruti (NBI C.A.C.A No. E14I OF 2022) delves on the issue of the court having jurisdiction to make orders of acquisition of title by adverse possession as being now conclusive that only the High Court has jurisdiction. 33. On succession proceedings and land rights counsel urged that Section 45 of the Law of Succession Act makes it a punishable offence to intermeddle with the free property of a deceased person without a grant of letters of representation of the deceased. He urged that in the instant case Land Parcel No. Kaksingri/Kagutu-Waregi/2322 which is a subdivision of Land Parcel No. Kaksingri/Kagutu-Waregi/632, is registered in the name of one Siriakus Okinyi Onyango, who died on 21st November 2017. Save for a Grant of Letters of Administration Ad Litem issued to the two plaintiffs to enable them to file a suit on behalf of the said deceased, a Grant of Letters of Administration Intestate of the Estate of Siriakus Okinyi Onyango had not been issued to enable any person to distribute his property. 18 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 18 of 37

Page 19 of 37 34. On the 4th Ground of Appeal, Counsel urged that the Law of Contract Act, the Land Registration Act and the Land Control Act set out the rules to be observed in the sale and transfer of a registered land. That there was satisfactory evidence that a written agreement for the sale of a portion of Land Parcel No. Kaksingri/Kagutu-Waregi/632 was entered into between the deceased land owner and one James Ochieng Odoyo. Further, that there was evidence showing that the late Siriakus Okinyi Onyango applied to the Land Control Board to subdivide his land into three parts thus creating Land Parcels Nos. Kaksingri/Kagutu-Waregi/2322, 2323 and 2324, which subdivision he did in the year 2016 when he was still alive. There was, however, no evidence that by the time of his death he had signed any transfer form or any Land Control Board Consent Form to transfer any of the subdivisions to James Ochieng Odoyo. Furthermore, there was no document or official receipt showing that transfer fees or stamp duty was ever paid. 35. Counsel urged that he concurred with the court that no evidence of forgery existed and the registered proprietor actually subdivided his land parcel No. 632 by Land Control 19 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 19 of 37

Page 20 of 37 Board Consent dated 21st January 2016 when he was still alive, but differed on the issue of validity of the sale contract. If an agreement for sale of the registered land was made on the 5th October 2005, then after the expiry of 6 months the contract of sale of land became void for all purposes in accordance with Section 6(1)(a) of the Land Control Act (Chapter 302, Laws of Kenya). Therefore, after 5 th April 2006 there was no contract capable of being enforced by court. 36. On the issue of a constructive trust, Counsel urged that the registered proprietor of Land Parcel No. Kaksingri/KagutuWaregi/632, Siriakus Okinyi Onyango, died on 21 st November 2017. A grant of letters of administration of his estate had not been issued to any administrator yet a person ought to obtain a Grant of Letters of Administration intestate in order to gain legal authority to manage the estate of a person who dies without a will. Further, that the two sons of Siriakus Okinyi Onyango obtained a Limited Grant of Letters of Administration ad Litem to enable them to file a suit against the defendants who were cutting trees growing on land registered in the name of their father, Siriakus Okinyi Onyango. The agreement for the sale of land was said to 20 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 20 of 37

Page 21 of 37 have been entered on the 5 th October 2005 which was 12 years before the death of the vendor, the land sale agreement became void by May 2006 as earlier stated. The principle of constructive trust could, in any event, become enforceable against the vendor, Siriakus Okinyi Onyango and not on a person who was merely protecting the estate of the vendor. 37. Counsel urged that a constructive trust is an equitable remedy imposed by a court to prevent unjust enrichment when someone had acquired or held property through wrongful or unconscionable means. It was used to ensure justice and good conscience and could be applied in situations like land sales where a seller received payment but failed to transfer the property or in Company Law to address a shareholder who obtains shares unconscionably. He urged that in the evidence adduced there was no evidence adduced showing that Siriakus Okinyi Onyango had any intentions or did any acts that could be described as unconscionable or intended to deny the purchasers their rights. Consequently, considering that he died before effecting the transfer any lawful demands can only be 21 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 21 of 37

Page 22 of 37 answered by the administrator of his estate. The doctrine of constructive trust is therefore inapplicable in this case as the buyer himself sat on his rights for over 12 years. 38. Counsel urged that an interested party in a suit had the right to participate in proceedings to protect their identifiable stake or legal interest which he feared would be affected by the court’s decision. He thus could be heard and even present submissions, or file witness statements and even adduce evidence but he was not allowed to introduce fresh issues or file a Defence in a suit where he was not a principal party since he has been only joined in the suit. Counsel submitted that the action of awarding an interested party the suit land was therefore beyond the court’s jurisdiction and should not be allowed. The interested party could enforce his own rights by filing another suit as a plaintiff. Respondents’ submissions 39. Learned Counsel for the Respondent urged that with regard to the allegation that the trial court lacked jurisdiction because the issue before it was one of adverse possession, the Interested Party, in his statement of defence, the counter-claim and evidence during testimony, stated very 22 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 22 of 37

Page 23 of 37 clearly that he bought the land from the deceased. Further, the Learned Magistrate in her judgment stated in no uncertain terms that she was satisfied that the sale agreement tendered as evidence was authentic. Further, nowhere in her judgment had the learned Magistrate made any reference to adverse possession. The ratio decidendi of the judgment was that the land was purchased by the 2 nd Respondent/Interested Party. Counsel urged that the trial court had jurisdiction to handle the issue at hand. 40. On intermeddling, Counsel submitted that the learned Magistrate’s determination at paragraph 2 (pg. 7) made a finding that “... the sale agreement was executed by the deceased and the interested party in his presence, the court finds that the sale agreement is valid and enforceable against the plaintiffs who are administrators of the estate of...” It was not clear how the learned Magistrate could be faulted for the finding on intermeddling. 41. On whether failure to obtain Land Control Board Consent within 6 months rendered the sale agreement invalid, Counsel urged that the trial court dealt satisfactorily with this 23 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 23 of 37

Page 24 of 37 issue, reproducing the authorities relied upon by the trial court. 42. On whether the court erred in applying the doctrine of constructive trust, Counsel urged that the term appeared only as reference to the case of Willy Kimutai Kitilit v Michael Kibet (2018) eKLR which the trial court relied on as an authority to arrive at a finding that failure to obtain Land Control Board Consent was not fatal. To that extent, it could not form the ratio decidendi of the judgement. He urged that the court having found that the 2 nd Respondent/interested party actually bought the land from the deceased, the buyer acquired an equitable interest in it and anybody laying claim to the said property, in whatever manner, put himself in the position of a trustee in relation to the purchaser. Counsel urged the court to dismiss the appeal with costs. Analysis and Determination 43. This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J. Odera & Associates v John Patrick 24 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 24 of 37

Page 25 of 37 Machira t/a Machira & Co Advocates [2013] eKLR as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 44. Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows: “As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions 45. Having considered the Memorandum of Appeal and the record of appeal, the grounds of appeal are hereby condensed and reduced to the following issues for determination: 25 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 25 of 37

Page 26 of 37 1) Whether the trial court erred in finding that the defendant had proved the counterclaim. 2) Whether the trial court erred in finding that there was a constructive trust. 3) Whether the trial court erred in finding that there was a valid sale agreement despite the absence of a Land Control Board Consent. 4) Whether the trial court erred in awarding costs to the interested party. 46. I will determine them sequentially. Whether the trial court erred in finding that the defendant had proved the counterclaim. 47. The Interested Parties’ claim was that he had purchased the parcel known as parcel No. 632 from the late Siriakus in the year 2005. He produced a sale agreement dated 5 th October 2025 as evidence to evidence that he purchased the suit land, measuring 1 ½ acres, from the late Siriakus at a consideration of Kshs. 18,000/=. The agreement was produced as Defence Exhibit 3. 48. The Appellant, on his part, produced a certificate of official search as evidence of the ownership of the suit land sub 26 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 26 of 37

Page 27 of 37 divisions by Siriakus. They showed the titles were issued in the year 2018. From the Grant of Administration Ad Litem, it was evident that the deceased died in the year 2017, thereby bringing the validity and legality of the titles and sub divisions into question. The Appellant also claimed that the sale agreement by the Interested Party was forged. 49. It is trite law that he who alleges must prove. This position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 50. Sections 109 and 112 of the same Act states as follows: “109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 27 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 27 of 37

Page 28 of 37 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 51. In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in Mumbi M'Nabea vs David M. Wachira [2016] eKLR stated as follows: “In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.” 52. The critical fact to prove by the appellant on this issue was the claim of forgery. Forgery, though a civil claim also relates to the criminal element in it hence such allegations require specific proof and is slightly higher in proof that a mere allegation. The Appellant, having not tendered proof of forgery, could not rebut the 1 st interested parties’ evidence 28 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 28 of 37

Page 29 of 37 that he had purchased the suit land from the late Siriakus. It is therefore my considered view that the interested party proved that he had indeed purchased the suit land in the year 2005. It was not just enough to prove that the agreement was forged. The appellant needed to go beyond such an averment. Whether the trial court erred in establishing a constructive trust 53. According to the Black’s Law Dictionary, 9th Edition; a trust is defined as: “The right, enforceable solely in equity, to the beneficial 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 benefit of a third party (beneficiary).” 54. In the case of Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) the Supreme Court also weighed in on this matter as follows; “The Trustee Act defined a “trust” and “trustee” as extending to implied and constructive trusts. A constructive trust was an equitable instrument 29 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 29 of 37

Page 30 of 37 which served the purpose of preventing unjust enrichment. Trusts were created either expressly, where the trust property, its purpose and the beneficiaries were clearly stated, or established by the operation of the law. Like in the instant case, where it was not expressly stated, the trust may be established by operation of the law… A constructive trust was a right traceable from the doctrines of equity. It arose in connection with the legal title to property when a party conducted himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust would thus automatically arise where a person who was already a trustee took advantage of his position for his own benefit.” 55. Additionally, the Supreme Court held; “While sections 25, 26 and 28 of the Land Registration Act recognized that the rights of a registered proprietor of land were absolute and indefeasible, those were only subject to rights and encumbrances noted in the register and overriding 30 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 30 of 37

Page 31 of 37 interests. The overriding interests included trusts. In the absence of any limitation as to the trusts, that included constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property was provided constructive under trust. law, Section and 28 included of the a Land Registration Act provided that the registration was subject to overriding interests. One of the overriding interests was a trust, which included constructive trust… … Constructive trusts could arise in various circumstances, including in land sale agreements. A trust was an equitable remedy which was an intervention against unconscionable conduct. Where the circumstances of the case were such that it would demand that equity treated the legal owner as a trustee, the law would impose a trust. It was imposed by law whenever justice and good conscience required it. A constructive trust can be 31 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 31 of 37

Page 32 of 37 imported into a land sale agreement to defeat a registered title.” 56. It is my considered view that the application of the doctrine of constructive trust by the trial court was appropriate in the circumstances. The 2nd defendant having purchased the suit land, made payments for the same and having settled on it, thereby causing him to change his position to his detriment, he could not then be deprived of the land for the reason that the deceased neglected to transfer the land to him. The seller had a constructive trust created in favour of the buyer. Reference is made to the Willy Kimutai Kitilit v Michael Kibet (2018) eKLR decision. In my view, it was the duty of the seller to facilitate the process of obtaining the Land Control Board consent within the time provided by the law. In other words, the defendant must show that he availed himself for the process to succeed in time but the buyer deliberately failed to take up the opportunity to complete the same. 57. Further, it is my finding that there was a common intention to sell the land to the interested party and the purchaser paid full consideration for the same after entering into the 32 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 32 of 37

Page 33 of 37 agreement. I am in agreement with the finding of the trial court on this issue. Whether the trial court erred in finding that there was a valid sale agreement despite the absence of a Land Control Board Consent 58. Ideally, the land in question was agricultural land and therefore a controlled transaction governed under Section 6(1) of the Land Control Act and which stipulates that such a transaction: “is void for all purposes unless the Land Control Board for the Land Control Board area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.” 59. Section 6 (2) of the Land Control Act provides: “For avoidance of doubt, it is declared that the declaration of trust of agricultural land situated within a Land Control Board area is a dealing in land for purposes of subsection (1)” 60. Section 8 (1) requires that an application for consent should be made in the prescribed form within six months of the 33 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 33 of 37

Page 34 of 37 making of the agreement but the proviso thereto gives the High Court power to extend the period if it considers that there are sufficient reasons to do so upon such conditions, if any, as it may think fit. 61. As I have stated above, the Court of Appeal has now settled this albeit long term grey area wherein sellers took advantage of the provision to deprive of genuine innocent buyers of their hard earned interests in land by carefully or subtly playing games of delay to the extent that the period of obtaining land control board consents elapsed and then they (sellers) moved to renege their contractual obligations. This clarification of the legal position was in the case of Willy Kimutai Kitilit vs. Michael Kibet [2018] eKLR wherein the Court in considering these provisions held as follows: “The Land Control Act does not, unlike Section 3 (3) of the Law of Contract Act and Section 38 (2) of the Land Act save the operation of the doctrines of constructive trust or proprietary estoppel nor expressly provide that they are not applicable to controlled land transactions. Although the purpose of the two statutes are apparently different, they 34 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 34 of 37

Page 35 of 37 both limit the freedom of contract by making the contract void and enforceable. Since the doctrines of constructive trust and proprietary estoppel apply to oral contracts which are void and enforceable, in our view, and by analogy, they equally apply to contracts which are void and enforceable for lack of consent of the Land Control Board especially where the parties in breach of the Land Control Act have unreasonably delayed in performing the contract. However, whether the court will apply the doctrines of constructive and proprietary estoppel to a contract rendered void by lack of the consent of Land Control Board will largely depend on the circumstances of each particular case.” ………….Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that the equitable doctrines of constructive trust and proprietary estoppel are 35 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 35 of 37

Page 36 of 37 applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board.’’ 62. The upshot of the foregoing is that given the establishment of a constructive trust, the sale could not be invalidated on the basis of being a controlled transaction. I am therefore in agreement with the finding of the trial court in this regard. Whether the trial court erred in awarding costs to the interested party. 63. Section 27 (1) of the Civil Procedure Act provides that the award of costs is at the discretion of the court, with the general principle being that "costs follow the event" unless the court, for good reason, orders otherwise. This discretion must, however, be exercised judiciously. 64. Halsbury’s Laws of England; 4th Edition (Re-issue), [2010], Vol.10. para 16, states that: “The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has 36 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 36 of 37

Page 37 of 37 no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” 65. Seldom will courts interfere with judicial discretion on appeal and therefore, given that the Appellant has not given sufficient reason as to why the court should interfere with the award for costs, I decline to do so. 66. The upshot of the foregoing is that the Appeal is dismissed in its entirety with costs to the Respondents. Judgment dated, signed and delivered virtually via the Teams Platform this 28th day of April 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Ms. Oyala Advocate for GS Okoth for the Appellant Ms. Atieno Advocate holding brief for Orondo Advocate for 1 st and 2nd Respondents 37 | P a g e Homa Bay ELCLA E026 of 2025, Judgment delivered on 28.4.2026

page 37 of 37