Macharia v Wambui (Environment and Land Case E035 of 2025) [2026] KEMC 251 (KLR)

4. The plaintifi testified that the transfer documents could not be registered because the defendant was required to upgrade her first-generation identity card to a second-generation card. Despite promising to do so, she disappeared and became unreachable. Repeated attempts to secure her cooperation were unsuccessful, forcing him to issue a demand letter, which also went unanswered. The plaintifi now seeks enforcement of his rights through this court. Issues for Determination 1. Whether the plaintifi has proved that he purchased the suit properties from the defendant and is entitled to their ownership. 2. Whether the defendant holds the suit properties in trust for the plaintifi. 3. Whether the court should order transfer of the suit properties to the plaintifi. Analysis of the Issues 5. The plaintifi’s evidence remained uncontroverted as the defendant did not participate in the proceedings. The law is clear that where a defendant fails to defend a suit despite being duly served, the plaintifi’s evidence stands unchallenged, though the court must still satisfy itself that the claim is proved on a balance of probabilities. This principle was afirmed in Shaneebal Limited v County Government of Machakos [2018] eKLR, where the court held that uncontroverted evidence ought to be accepted if it is credible. 6. On the first issue, the plaintifi produced sale agreements for both parcels, original titles, and executed transfer forms. These documents establish that the defendant indeed sold the parcels to him, received full payment, and executed the requisite conveyancing instruments. The plaintifi further demonstrated that he took possession and developed the parcels, facts consistent with the conduct of a bona fide purchaser. The circumstances are akin to those in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, where the Court of Appeal underscored the enforceability of land sale agreements accompanied by possession and part performance even where registration has not been perfected. 7. Regarding whether the defendant holds the suit properties in trust for the plaintifi, constructive trust arises where a vendor receives consideration and places the purchaser in possession but later fails, neglects, or refuses to facilitate registration. In Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR, the Court of Appeal explained that a constructive trust is imposed by law to prevent unjust enrichment where one party retains title in circumstances where equity would demand transfer to another. The present facts align squarely with that principle. The defendant collected the purchase price, relinquished control of the titles, signed transfer documents, and placed the plaintifi in possession. Her subsequent disappearance and refusal to provide her updated identification cannot defeat the equitable interests already created in the plaintifi’s favour. 8. On the final issue, courts of equity have jurisdiction to compel transfer of land where a constructive trust or resulting trust has been established. Section 98 of the Civil Procedure Act empowers the court to authorize execution of documents by its oficers where an obligated party refuses or neglects to do so. This approach was applied in Kanyi v Muthiora [1984] KLR 712, where the court held that equitable interests must be protected and that formal title must eventually refiect the true ownership derived from equitable dealings. Given the defendant’s prolonged refusal to complete the transaction, the plaintifi is entitled to an order compelling transfer. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/251/eng@2026-03-03 2

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Disposition 1. A declaration is hereby issued that the plaintifi, Daniel Gacunga Macharia, is the rightful owner of land parcels Kiambogo/Kiambogo Block 2/6271 and Kiambogo/Kiambogo Block 2/6272, and that the defendant, Agnes Wambui, holds the said titles in trust for the plaintifi. 2. An order is hereby issued directing the defendant to execute transfer instruments in favour of the plaintifi within thirty (30) days of service of this judgment. 3. In default of compliance by the defendant, the Executive Oficer of this Court is authorized to execute all necessary documents to efiect transfer of the suit properties to the plaintifi. 4. The plaintifi is awarded costs of the suit together with interest. JUDGMENT DATED SIGNED AND DELIVERED IN OPEN COURT/ VIRTUALLY ON THE 3RD DAY OF MARCH 2026 V. O. ADET. SENIOR PRINCIPAL MAGISTRATE. In the presence of The plaintifi https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/251/eng@2026-03-03 3

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