Daniel Kibet Lasoi (Suing as the legal representative and Administrator of the Estate of the late William Kipng’eno Arap Lasoi) hereinafter referred to as the plaintiff filed two suits against George Gesore Mboga, the 1st defendant and Evans Matunda, the 2nd defendant being Nakuru ELC No.47 of 2020 and Nakuru ELC NO No. 48 of 2020 respectively. The two suits were consolidated by this honorable court because the issues revolve on the same parcel of the land and are the same. In the plaint filed in Nakuru ELC No.47 of 2020 the plaintiff prays for an order of eviction to issue to the court bailiffs or an auctioneer to remove and evict the Defendants by himself, his agents, his servants, and all his employees and to demolish and uproot all the structures, buildings, crops and other buildings and fences from the property of the late William Kipng'eno arap Lasoi known as Ngata LR No. 13287/135.
Moreover, he prays for a permanent order of injunction restraining the Defendant by himself, his agents, his servants, and any other persons acting under the Defendant's instructions (express or implied) from entering into, trespassing onto, ploughing, cultivating crops, dealing with or in any way interfering with parcel of land known as Ngata L.R NO. 13287/ 135. The plaintiff prays that the costs of this suit be borne by the defendant.
The claim against the defendant is based on facts that at all material times to this suit, the late William Kipng'eno arap Lasoi was for all purposes and intent the registered proprietor of all that parcel of land known as Ngata L.R No. 13287/135 and pursuant to the Certificate of Confirmation issued to the Plaintiff on 3rd December 2008 this particular property of the deceased was apportioned and distributed to Daniel and not to any other person.
According to the plaintiff, the Defendant is neither a beneficiary nor a heir, nor a creditor of the Estate of the William Kipng'eno arap Lasoi and he has no colour of right, any beneficial or equitable rights in any of the properties of the estate of the late William Kipngeno arap Lasoi, which Estate is yet to be fully distributed to the beneficiaries as per the certificate of confirmation of the Grant issued on 3rd December 2008, and has no right of whatsoever nature in the properties of the Estate of the late William Kipng'eno arap Lasoi.
The plaintiff alleges that the Defendant wrongly and forcefully without the consent or authority or even knowledge of the Plaintiff entered into the Estate's property namely NGATA L.R NO. 13287/135, hived off a big chunk thereof and allocated himself the same, took possession of the said chunk of land and commenced cultivation thereon, as a result denying the Estate its rights thereto and shutting out the Plaintiff from using, accessing or dealing with the whole land free of any interference. The pleadings are similar in Nakuru ELC 48 of 2020 save for the parties. The prayers are the same. The transactions are the same.
The 1st defendant George Gesore Mboga filed a statement of defence and counter claim. He denied the plaintiff assertion that the plaintiff brought the suit for the benefit of the estate of William Kipngeno Arap Lasoi. He admits that the late William Kipngeno arap Lasoi was the registered proprietor of all that parcel of land known as Ngata L.R NO. 13287/135 but the Defendant denies the allegations of the Plaintiff to the effect that pursuant to the certificate of confirmation issued to the Plaintiff on 3rd December 2008 the suit property was apportioned and distributed to the Plaintiff to the exclusion of other beneficiaries. The Defendant avers that the entire estate of the late William Kipngeno arap Lasoi was vested in the Plaintiff as the sole administrator of the Estate for the benefit of all the other beneficiaries and/or dependents of the late William Kipngeno arap Lasoi.
The Defendant avers that vide a sale agreement dated 12th September 2018 he purchased Four (4) acres to be excised from the suit property Ngata L.R 13287/135 from Elisha Chebii Chesiyna now deceased and Susan C.K, Chesiyna at a purchase consideration of Kshs.14 million and the Defendant paid to them a sum of Kshs.13 million as full purchase consideration upon resurvey of the land which was approximately 3.5 acres as opposed to the 4 acres stated in the agreement and that at the time of the said purchase, Elisha Chebii Chesiyna now deceased and Susan C. K. Chesiyna were the beneficial owners in possession and occupation of the 4 acres to be excised from L.R. NGATA 13287/135 having in turn purchased the said portion of land from the beneficiaries of the estate of William Kipngeno arap Lasoi with the full consent and participation of the Plaintiff who even benefited from the proceeds of the said sale.
The Defendant therefore denies the Plaintiffs allegations that he hived off a big chunk of land and commenced cultivation thereon, as a result denying the Estate its rights thereto and shutting out the Plaintiff from using, accessing or dealing with the whole land free of any interference. The Defendant further avers that to the contrary the Defendant took over the 4 acres from Elisha Chebii Chesiyna (Deceased) and Susan C.K. Chesiyna after purchasing them and has since carried out massive developments on the said portion of land and therefore the Plaintiff is not entitled to either an order of eviction as against the defendant nor an order of permanent injunction as the disputed portion of land was disposed of by way of sale by the beneficiaries to the two initial purchasers aforesaid who acquired rightfully beneficial proprietary rights.
By way of Counter claim the 1st defendant now the plaintiff avers that the 2nd Defendants’ claim is actuated with malice against him as the Plaintiff (2nd Defendant in the counterclaim) had the entire estate of the late William Kipng’eno Arap Lasoi through Nakuru High Court Succession Cause No. 489 of 2002 confirmed in his favour to hold in trust for himself and for the benefit of all the beneficiaries entitled to share in the estate and it is therefore factually incorrect that the whole parcel Ngata L.R No. 13287/135 was apportioned and distributed solely to the Plaintiff (2nd Defendant in the counter-claim).
The Defendant (Plaintiff in the counter-claim) avers that through several sale agreements, the other beneficiaries of the estate of the late William Kipngeno arap Lasoi disposed of their portions of land in Ngata L.R 13287/135 to the 1st Defendant (in the counterclaim) and her late husband Elisha Chebii Chesiyna who paid the agreed purchase consideration in full and took possession of the portions of land purchased comprised in Ngata LR.13287/135. The Defendant (Plaintiff in the counter-claim) avers that vide sale agreement dated 12th September 2018 he purchased from the 1st Defendant (in the counter claim) and her husband 4 acres being part of L.R 13287/135 at a purchase consideration of Kshs.14 million. The 1st defendant (Plaintiff in the counter-claim) pursuant to the said agreement dated 12th September 2018 paid to the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna a sum of Kshs.13 million as full purchase price as the acreage of the land was found to have been less than 4 acres. The Defendant (Plaintiff in the counter claim) avers that at the time of purchasing the suit land from the IstDefendant (in the counter-claim) they were in occupation of the said land as beneficial owners through purchase who had equitable and beneficial rights of ownership and that after purchasing the suit land from the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna, he took possession of the said land from the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna in the year 2018 and has had peaceful and quiet possession of the said parcel of land which he has been carrying farming therefrom until he was shocked to be served with summons in these proceedings.
The Defendant (Plaintiff in the counter-claim) avers that the process of disposal of the suit land by the other beneficiaries of the estate of the late William Kipngeno arap Lasoi to the 1st Defendant (in the counter-claim) and her husband was legitimate and it conferred ownership rights to the 1st Defendant (in the counter-claim) and her husband which they transferred to the Defendant (Plaintiff in the counter-claim) through the said sale agreement.
The Defendant (Plaintiff in the counter-claim) avers that the Plaintiff (2nd Defendant in the counter-claim) has expressly admitted that although the certificate of confirmation of grant shows that he was apportioned all the estate, he was only to hold in trust for all the other beneficiaries of the Estate and that the 2nd Defendant (in the counter-claim) was all along aware of the disposal of the suit land by his own siblings to the I Defendant (in the Counter-claim) and her husband and is therefore estopped from challenging the rights of ownership of the Defendant (Plaintiff in the counter-claim) to the suit land.
The Defendant (Plaintiff in the counter-claim) prays to this Honorable court for an order to restrain the Plaintiff (2nd Defendant in the counterclaim) from interfering with the Defendant's (Plaintiff in the counter-claim) occupation of the suit land by way of permanent injunction orders.
In the alternative, the Defendant (Plaintiff in the counterclaim) prays for an order for refund of sum of Kshs.13 million being the purchase price with interest at court rates from the date of payment to-date and/or date of full refund by the 1st Defendant (in the counter-claim) and/or estate of the late Elisha Chebii Chesiyna.
In the further alternative, the Plaintiffs (in the counter-claim) pray for compensation at the current market value of the 4 acres to be jointly paid by the Defendants (in the counter claim) and/or estate of Elisha Chebii Chesiyna.
The 1st defendant (plaintiff in counter claim) further prays for a declaration that he is the rightful legal owner through purchase of the suit land measuring approximately 4 acres being part of Ngata L.R No. 13287/135.
In the further alternative an order for compensation at the current market value of the 4 acres by the Defendants and/or estate of Elisha Chebii Chesiyna.
The 2nd defendant and Robert Stephen Mokaya filed defence and counter claim whose gist was that the plaintiff was holding the property in trust for the beneficiaries of the estate of William Kipng’eno Arap Lasoi. He claims to have purchased four (4) acres of the suit property at a consideration of 14 million. That Susan C K Chesiyna and Elisha Chesii Chesiyna now deceased were the beneficial owners in possession and that the plaintiff benefited from the sale. The defendant took over the land from the deceased and have developed the same. The 1st defendant (1st plaintiff in Counter claim) and 2nd plaintiff in counter claim stated that the 1st and 2nd defendants received Ksh14 million which has been acknowledged by the 1st defendant and 4.5 million has been acknowledged by the 2nd defendant.
The plaintiffs in the counter claim stated that they purchased the suit property from the Estate beneficiaries of the deceased. The plaintiff in the counter claim prays for judgment in terms of a declaration that they are the rightful legal owners through purchase of suit land measuring approximately 4 acres being part of Ngata L.R I 13287/135.
In the alternative the plaintiffs pray for an order for refund of the sum of Kshs. 14 million by the 1st Defendant (in the counter claim) and/or estate of the late Elisha Chebii Chesiyna with interest at court from the date of payment until refunded in full. In the further alternative an order for compensation at the current market value of the 4 acres by the Defendants and/or estate of Elisha Chebii Chesiyna.
In defence to counter claims, the 1st defendant admits that vide Sale agreement dated 8th January 2019, the plaintiffs purchased from her and her later husband 4 acres of land being part of parcel number Ngata/LR 13287/135 at Ksh14 million. The 1st defendant in the counter claim filed a similar defence in Nakuru ELC No.47 of 2020
When the matter came up for hearing the plaintiff, Daniel Kibet Lasoi (PW1) adopted his statement as evidence in chief and testified further that he was the administrator of the estate of the deceased. He produced the certificate of confirmation of grant and stated that he did not exclude the beneficiaries of the estate and that no objection was raised in the succession cause. He knew the Chesiynas but did not sell any land to them. He was introduced to them by his late sister, Alice Lasoi. He received Ksh 4.5 million on his account but was not given notice that the amount was deposited for the purchase of land that was registered in the names of William Kipngeno Lasoi. He filed the case and later realized that the money was deposited on 8/4/2019. He did not realize the money deposit because his account had many transactions as he had sold 5 acres for 3.5 million per acre. The transaction does not indicate the purpose of the funds. He went to the farm and realized that someone was working on the firm. He went to Elisha Chesiyna with his nephew Julius Lasoi but the former told him that they had not sold the land. He testified that his father had sold 10 acres to Lokorio and a further 10 acres to Aduo Ventures. His land is 24.36 acres. He prayed for judgment as per plaint.
DW1, George Gisore Mboga, an advocate of the High Court of Kenya by profession, relied on his statement dated 6/2/2024 and further testified that he is familiar with the suit property in Ngata LR 13287/135 because he purchased 4 acres of the said land form Elisha Chebii Chesiyan and Susan C K Chesire vide an agreement dated 12/9/2018. The purchase price was Kshs3.5 million per acre and therefore the sum total was 14,000,000. When the property was sold, the sellers were in occupation and the land was fenced and being used by the sellers to grow crops. They had purchased the land from various individual beneficiaries of Estate of the late Kipng’eno Arap Lasoi. He was informed that Alice was a beneficiary by virtue of being a niece to the plaintiff.
DW1 made payment of Kshs13.000,000 to Elisha Chebii Chesiyna and Susan C K Chesiyan. The purchase price, was 14,000,000 but they paid ksh13,000,000 upon measuring the land and establishing that the land was 3.5 acres as opposed to 4 acres. He produced the RTGS payments and deposit slips. The vendors explained that they had purchased the land from different beneficiaries of the Estate of Lanoi whose estate was to be shared by the beneficiaries. He saw the certificate of confirmation of grant. Beneficiaries have not been confirmed. All the properties are being held by Daniel Kibet Lasoi.
DW2, Evans Juma Matunda also an advocate of the High Court like DW1 adopted his statement as evidence in chief and testified that they were buying 4 acres of Ngata LR 13287/135 at 3.5 million per acre all totaling to 14,000,000/= . The people selling did not have titles. The vendors were in occupation and had occupied the land for more than 5 years. He paid the entire sum of money after taking a bank loan of 10, 000,000. The Money was transferred to Elisha Chesiyna and Susan Chesiyna’s account at credit Bank. He has settled on the land and built structures. The structures are captured in the plaintiff list of documents. There were semi-permanent structures and electricity lines. He had also planted trees on the land. He testified that sometimes in 2019 the plaintiff and another person went to the ground and enquired how he had obtained the land. He was surprised later to be served with a suit by the plaintiff where eviction was prayed for.
Susan C.K. Chesiyna, a business woman, politician, farmer and leader testified as DW3 that the plaintiff is the son of William Kipng’eno Lasoi. Alice Lasoi was the sister to the plaintiff. Alice Lasoi passed away and left behind children who were the plaintiffs nephews and nieces and grandchildren to William Kipng’eno Lasoi . Alice Lasoi went to their office at gatehouse Nakuru estate to see Mr Chesina before passing away. They knew Alice Lasoi had land in Ngata that had been given by her father William Kipngeno Lasoi. The parcel of land was 20 acres of LR No.13287/135. Alice Lasoi sold a portion of 10 acres to John Lokorio. There was a balance of less than 17 acres. Alice approached them as she wanted to sell land because of a problem. Alice Lasoi sold them a portion of one acre and they were told that the administrator was Daniel Lasoi.
The land belonged to Daniel Kibet Lasoi as the administrator of the estate of the deceased. They bought 8.5 acres and took possession immediately. Daniel Lasoi was aware of the transactions. The plaintiff Daniel Kibet Lasoi called them after purchasing the land and they met at Serena in Nairobi in 2019. Part of the money was wired to Daniel Kibet Lasoi’s account to assist his nephews. The money was wired from Equity Bank to Daniel Lesoi’s account No.0941931596, Queensway branch. The purpose of the transfer was purchase of land. When the money reached the account he called her and never complained. He accessed the money on 8/4/2019. When they met, he told her to pay Jenifer, some money. He wrote a cheque of Kshs100,000 to Jeniffer she prayed that it be found that they bought the land from the rightful owners and therefore should be given the land. The witness produced the details of the transactions with the beneficiaries.
Kepha Ombati, also an advocate of the High Court of Kenya relied on his written statement and further testified that he acted for Elisha Chebii Chesiyna, Susan Chebii Chesiyna and Nasha Co.Ltd in transactions related to LR.No.13287/135 in Ngata which belonged to William Kipng’eno Lasoi (deceased). He states that he was informed that Alice Jepngetich Mwashe was the administrator of the Estate of the deceased and that Mercy Munyi, Pamela Lasoi. Betty Munyi, Everlyn Muthoni, Rodgers Njoroge Ngugi and Caren Wanjiku Ngugi were the beneficiaries of the estate. The contact person for the sale was Daniel Kibet Lasoi. He received the relevant documents indicating that the property belonged to William Kipng’eno Lasoi. Pending the conduct of due diligence, he received an e-mail message dated12th August 2015 from Elisha Chesiyna requesting that he sends the draft agreements for the sale in respect of the suit property. He prepared 4 draft sale agreements and sent them to Mr and Mrs Chesiyna. When conducting due diligence, he discovered that the suit property did not have a title and therefore he could not do a search. He informed the Chesiynas who instructed him to pursue a title in the name of the deceased. Though he was availed documents to assist him pursue the title the process stalled due to unavailability of funds.
Submissions by Plaintiff
After the close of the defence case, parties were requested to file submissions. The plaintiff submits that he never sold the parcel of land in dispute to the defendant. Moreover, that the available parcel of land for sale or distribution is only 5 acres. The plaintiff further submitted that the beneficiaries of the estate of the deceased had no capacity to sell the land in dispute. Moreover, that the 1st defendant in the counter claim has circumvented the law in the sale of the deceased land. The plaintiff further submits that the documents produced as agreements were not properly executed because they were not signed by all the parties hence the agreements are void.
On the issue as the whether there exist a constructive trust as between the plaintiffs and the 1st defendant in the counter claim on account of receiving Kshs4,500,000 the plaintiff submits that a constructive trust has not been pleaded. Moreover, that he was not aware of the sum of money amounting to Ksh.4,500,000 deposit in his account. The plaintiff states that he is willing and ready to refund the money.
Defendants’ Submissions
The defendants submit that they have discharged their burden of proof on a balance of probabilities and should be awarded the reliefs prayed. The defendants contend that they have proved that there is constructive trust established and therefore they are beneficial owners of the disputed property. The defendants argue that there is evidence that they paid purchase price to the plaintiff and beneficiaries of the estate. The defendants rely on the decision of the Supreme Court of Kenya at Nairobi in petition no 12 of 2019 Dr Samson Gever & 4 others vs Kenya Medical Research Institute and 3 others where the court held that section 108 of the Evidence Act provides that the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side. The defendants further argue that the plaintiff’s suit is based on faulty foundation because he cannot rightfully challenge the defendants’ acquisition of the land as beneficial owners.
The defendants further submit that the 1st defendant in the counter-claim and her late husband by doctrine of constructive trust were the beneficial owners of the disputed property which they sold to the defendants. The beneficiaries of the estate of William Kipngeno Lasoi and the plaintiff received money a lot of money from the 1st defendant. The plaintiff acknowledged receiving Ksh 4.5 million from the 1st defendant being part of the purchase price. The defendants pray for costs of the suit.
The defendants rightfully submit that the doctrine of constructive trust need not be pleaded but ca be inferred by the court after analyzing the facts of the case.
Analysis and determination
I have considered the pleadings and evidence on record and do find that the plaintiff is the administrator of the estate of William Kipng’eno Lasoi who died domiciled in Kenya on the 9th September 2002 and the plaintiff was appointed the administrator on the 9th January 2003. The certificate of confirmation of grant was issued on 3rd December 2008 wherein all properties of the deceased including the suit properties were distributed to the plaintiff and therefore creating a situation whereby the plaintiff was holding the property in trust for the beneficiaries. The defendants in the main suits entered into agreements of purchase with the beneficiaries of the estate of the late William Kipngeno Lasoi and Susan C.K Chesiyna and her husband in respect of portions of the suit property sometimes in 2018. There is evidence that the defendants paid the the 1st defendant in the counterclaims Ksh 27,000,000 and were given possession of 3.7 acres and 4 acres respectively of the suit land. The plaintiff was paid ksh 4,500.000 out of the 27,000,000.
The first issue for determination is whether the property was lawfully sold to the defendants. On this issue I do find that at the time of sale of the property, it was still registered in the name of the deceased William Kipngeno Arap Lasoi. The plaintiff is the legal representative of the estate of William Kipng’eno Lasoi. The law of succession Act Cap 160 Laws of Kenya pre-empts any dealing with the property of a deceased person without a grant of letters of administration intestate. The propriety can only be distributed to the beneficiaries after payment of all debts and confirmation of the grant by the court. Section 45 of the Law of Succession Act provides:-
45. No intermeddling with property of deceased person
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
I do find that the dealings with the property of the deceased by the parties herein were not proper in law and were not supported by the Law of Succession Act Cap 160 laws of Kenya. However, the plaintiff and the beneficiaries acquiesced themselves in this dealings and received a lot money from the defendants and gave the defendants possession of the suit property which has been developed. Looking at the certificate of confirmation of grant, it is presumed that the plaintiff will be holding the suit property in trust for the beneficiaries when the same will be ultimately transmitted to him.
The second issue for consideration is whether the court can invoke the equitable principle of constructive trust. The word equity broadly means a branch of law denoting fundamental principles of justice. It has various meanings according to the context but three definitions from Black’s Law Dictionary, Ninth Edition will suffice for our purpose:
“1.
---2. The body of principles constituting what is fair and right.
3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances ---
4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “Law” in the narrower sense) when the two conflict”
The Principle of Constructive Trust is a principle of equity which can be invoked to do justice where the property is registered in the names of a person or he is a beneficial owner and he receives money as consideration for the sale of the same property and gives possession but declines to transfer the same due to legal technicalities like in this case where the plaintiff and the beneficiaries of the estate of William Kipngeno Lasoi have received approximately 27,000,000 from the defendants but are not willing to allocate them the land and instead want to evict the defendants.
The doctrines of equity are part of our laws by virtue of Section 3 of the Judicature Act which subordinates common law and the doctrines of equity to the Constitution and written law in that order.
The court of appeal in Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) held that Sections 3(3) of the Law of Contract Act and Section 38 (2) of the Land Act as amended clearly stipulate that the requirement that contracts for disposition of an interest in land should be in writing does not affect the creation or operation of a resulting, implied or constructive trust.
The court further observed that the decision in Yaxley v. Gotts [2000] Ch. 162 (Yaxley’s case) shows that the doctrine of constructive trust and proprietary estoppel overlaps and both are concerned with equity’s intervention to provide relief against unconscionable conduct.
In Yaxley’s case, the English Court of Appeal was dealing with the validity of an oral agreement by purchasers of a house to grant a long lease on the ground floor to a builder in exchange for labour, materials and services supplied. Section 2 of the English Law of Property (miscellaneous provisions) Act, 1989 provided in part:-
“(1) A contract for sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document…
(5) This section does not apply to … and nothing in this section affects the creation or operation of resulting, implied or constructive trusts…”
It was contended in that case that the oral agreement was void and that the doctrine of proprietary estoppel could not operate to give effect to such an agreement. It was held in part that:
“an oral agreement whereby the purchaser of a house promised to grant another, in exchange for materials and services supplied an interest in the property, though void and unenforceable under Section 2 of the Act of 1989, was still enforceable on the basis of constructive trust and Section 2 (5) in circumstances where, previously, the doctrine of part performance or proprietary estoppel might have been relied upon …”
On his part Beldam L. J. said at p. 193 para D
“In my view the provision that nothing in Section 2 of the Act of 1989 is to affect the creation or operation of a resulting, implied or constructive trusts effectively excludes from operation of the cases in which an interest in land might equally well be claimed by relying on constructive trust or proprietary estoppel.”
This court observes that in this case, the certificate of confirmation of grant was issued on 3rd December 2008. The plaintiff received the whole share of the property on the distribution. This means that he is the sole heir in the property as per the grant. It is evident that the plaintiff and the beneficiaries received money amounting to 24,000.000 from the defendants. At the time of the receipt of the money, he was named as the sole heir to the estate of the deceased in respect to the property in dispute. The action pending is the transmission of the property into his name and the names of the beneficiaries who have already sold their interest. However, this court finds that the doctrine of continuing trust is applicable in this case as the plaintiff is holding the property in trust for the beneficiaries. It is evident that the plaintiff and the beneficiaries of the estate of the deceased William Kipngeno Lasoi received money from the defendants and it will be unconscionable for the plaintiff and the beneficiaries to receive money from the defendants and allow them to take possession and apply to this court to evict the plaintiffs. This court further finds that under the Principle of Constructive Trust the plaintiff is duty bound to transfer of a share of land at the value of Kshs 27,000,000 as at 31st December 2019 to the 1st and 2nd defendants.
On the issue as to whether the defendants are entitled to a refund, the defendants have proved that the plaintiff received Kshs4,500,000 out of the 24,000.000 that was paid to Susan C.K Chesiyna whereas the 1st defendant in the counter claim received Kshs24,000,000 being the purchase price for the land in dispute. It is only fair that the defendant be re-imbused their money or be allocated land as promised. The upshot of the above is that the defendants are legally entitled to a refund.
Ultimately, I do make a declaration that the 1st and 2nd defendants are beneficial owners through purchase of the suit land measuring approximately 3.7 acres and 4 acres respectively being part of Ngata L,R NO 13287/135 which they occupy.
In the alternative it is hereby ordered that the 1st and 2nd defendants in the main suit be refunded by the 1st defendant in the counter claim their money amounting to Kshs13,000,000/=, and 14,000.000/= respectively paid as purchase price. The plaintiff to refund the 1st defendant in the counter claim an amount of Ksh 4,500,000 received by him as proceeds of the sales. The 1st and 2nd defendants to vacate the suit land upon refund of the purchase price.
Moreover, he prays for a permanent order of injunction restraining the Defendant by himself, his agents, his servants, and any other persons acting under the Defendant's instructions (express or implied) from entering into, trespassing onto, ploughing, cultivating crops, dealing with or in any way interfering with parcel of land known as Ngata L.R NO. 13287/ 135. The plaintiff prays that the costs of this suit be borne by the defendant.
The claim against the defendant is based on facts that at all material times to this suit, the late William Kipng'eno arap Lasoi was for all purposes and intent the registered proprietor of all that parcel of land known as Ngata L.R No. 13287/135 and pursuant to the Certificate of Confirmation issued to the Plaintiff on 3rd December 2008 this particular property of the deceased was apportioned and distributed to Daniel and not to any other person.
According to the plaintiff, the Defendant is neither a beneficiary nor a heir, nor a creditor of the Estate of the William Kipng'eno arap Lasoi and he has no colour of right, any beneficial or equitable rights in any of the properties of the estate of the late William Kipngeno arap Lasoi, which Estate is yet to be fully distributed to the beneficiaries as per the certificate of confirmation of the Grant issued on 3rd December 2008, and has no right of whatsoever nature in the properties of the Estate of the late William Kipng'eno arap Lasoi.
The plaintiff alleges that the Defendant wrongly and forcefully without the consent or authority or even knowledge of the Plaintiff entered into the Estate's property namely NGATA L.R NO. 13287/135, hived off a big chunk thereof and allocated himself the same, took possession of the said chunk of land and commenced cultivation thereon, as a result denying the Estate its rights thereto and shutting out the Plaintiff from using, accessing or dealing with the whole land free of any interference. The pleadings are similar in Nakuru ELC 48 of 2020 save for the parties. The prayers are the same. The transactions are the same.
The 1st defendant George Gesore Mboga filed a statement of defence and counter claim. He denied the plaintiff assertion that the plaintiff brought the suit for the benefit of the estate of William Kipngeno Arap Lasoi. He admits that the late William Kipngeno arap Lasoi was the registered proprietor of all that parcel of land known as Ngata L.R NO. 13287/135 but the Defendant denies the allegations of the Plaintiff to the effect that pursuant to the certificate of confirmation issued to the Plaintiff on 3rd December 2008 the suit property was apportioned and distributed to the Plaintiff to the exclusion of other beneficiaries. The Defendant avers that the entire estate of the late William Kipngeno arap Lasoi was vested in the Plaintiff as the sole administrator of the Estate for the benefit of all the other beneficiaries and/or dependents of the late William Kipngeno arap Lasoi.
The Defendant avers that vide a sale agreement dated 12th September 2018 he purchased Four (4) acres to be excised from the suit property Ngata L.R 13287/135 from Elisha Chebii Chesiyna now deceased and Susan C.K, Chesiyna at a purchase consideration of Kshs.14 million and the Defendant paid to them a sum of Kshs.13 million as full purchase consideration upon resurvey of the land which was approximately 3.5 acres as opposed to the 4 acres stated in the agreement and that at the time of the said purchase, Elisha Chebii Chesiyna now deceased and Susan C. K. Chesiyna were the beneficial owners in possession and occupation of the 4 acres to be excised from L.R. NGATA 13287/135 having in turn purchased the said portion of land from the beneficiaries of the estate of William Kipngeno arap Lasoi with the full consent and participation of the Plaintiff who even benefited from the proceeds of the said sale.
The Defendant therefore denies the Plaintiffs allegations that he hived off a big chunk of land and commenced cultivation thereon, as a result denying the Estate its rights thereto and shutting out the Plaintiff from using, accessing or dealing with the whole land free of any interference. The Defendant further avers that to the contrary the Defendant took over the 4 acres from Elisha Chebii Chesiyna (Deceased) and Susan C.K. Chesiyna after purchasing them and has since carried out massive developments on the said portion of land and therefore the Plaintiff is not entitled to either an order of eviction as against the defendant nor an order of permanent injunction as the disputed portion of land was disposed of by way of sale by the beneficiaries to the two initial purchasers aforesaid who acquired rightfully beneficial proprietary rights.
By way of Counter claim the 1st defendant now the plaintiff avers that the 2nd Defendants’ claim is actuated with malice against him as the Plaintiff (2nd Defendant in the counterclaim) had the entire estate of the late William Kipng’eno Arap Lasoi through Nakuru High Court Succession Cause No. 489 of 2002 confirmed in his favour to hold in trust for himself and for the benefit of all the beneficiaries entitled to share in the estate and it is therefore factually incorrect that the whole parcel Ngata L.R No. 13287/135 was apportioned and distributed solely to the Plaintiff (2nd Defendant in the counter-claim).
The Defendant (Plaintiff in the counter-claim) avers that through several sale agreements, the other beneficiaries of the estate of the late William Kipngeno arap Lasoi disposed of their portions of land in Ngata L.R 13287/135 to the 1st Defendant (in the counterclaim) and her late husband Elisha Chebii Chesiyna who paid the agreed purchase consideration in full and took possession of the portions of land purchased comprised in Ngata LR.13287/135. The Defendant (Plaintiff in the counter-claim) avers that vide sale agreement dated 12th September 2018 he purchased from the 1st Defendant (in the counter claim) and her husband 4 acres being part of L.R 13287/135 at a purchase consideration of Kshs.14 million. The 1st defendant (Plaintiff in the counter-claim) pursuant to the said agreement dated 12th September 2018 paid to the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna a sum of Kshs.13 million as full purchase price as the acreage of the land was found to have been less than 4 acres. The Defendant (Plaintiff in the counter claim) avers that at the time of purchasing the suit land from the IstDefendant (in the counter-claim) they were in occupation of the said land as beneficial owners through purchase who had equitable and beneficial rights of ownership and that after purchasing the suit land from the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna, he took possession of the said land from the 1st Defendant (in the counter-claim) and her husband Elisha Chebii Chesiyna in the year 2018 and has had peaceful and quiet possession of the said parcel of land which he has been carrying farming therefrom until he was shocked to be served with summons in these proceedings.
The Defendant (Plaintiff in the counter-claim) avers that the process of disposal of the suit land by the other beneficiaries of the estate of the late William Kipngeno arap Lasoi to the 1st Defendant (in the counter-claim) and her husband was legitimate and it conferred ownership rights to the 1st Defendant (in the counter-claim) and her husband which they transferred to the Defendant (Plaintiff in the counter-claim) through the said sale agreement.
The Defendant (Plaintiff in the counter-claim) avers that the Plaintiff (2nd Defendant in the counter-claim) has expressly admitted that although the certificate of confirmation of grant shows that he was apportioned all the estate, he was only to hold in trust for all the other beneficiaries of the Estate and that the 2nd Defendant (in the counter-claim) was all along aware of the disposal of the suit land by his own siblings to the I Defendant (in the Counter-claim) and her husband and is therefore estopped from challenging the rights of ownership of the Defendant (Plaintiff in the counter-claim) to the suit land.
The Defendant (Plaintiff in the counter-claim) prays to this Honorable court for an order to restrain the Plaintiff (2nd Defendant in the counterclaim) from interfering with the Defendant's (Plaintiff in the counter-claim) occupation of the suit land by way of permanent injunction orders.
In the alternative, the Defendant (Plaintiff in the counterclaim) prays for an order for refund of sum of Kshs.13 million being the purchase price with interest at court rates from the date of payment to-date and/or date of full refund by the 1st Defendant (in the counter-claim) and/or estate of the late Elisha Chebii Chesiyna.
In the further alternative, the Plaintiffs (in the counter-claim) pray for compensation at the current market value of the 4 acres to be jointly paid by the Defendants (in the counter claim) and/or estate of Elisha Chebii Chesiyna.
The 1st defendant (plaintiff in counter claim) further prays for a declaration that he is the rightful legal owner through purchase of the suit land measuring approximately 4 acres being part of Ngata L.R No. 13287/135.
In the further alternative an order for compensation at the current market value of the 4 acres by the Defendants and/or estate of Elisha Chebii Chesiyna.
The 2nd defendant and Robert Stephen Mokaya filed defence and counter claim whose gist was that the plaintiff was holding the property in trust for the beneficiaries of the estate of William Kipng’eno Arap Lasoi. He claims to have purchased four (4) acres of the suit property at a consideration of 14 million. That Susan C K Chesiyna and Elisha Chesii Chesiyna now deceased were the beneficial owners in possession and that the plaintiff benefited from the sale. The defendant took over the land from the deceased and have developed the same. The 1st defendant (1st plaintiff in Counter claim) and 2nd plaintiff in counter claim stated that the 1st and 2nd defendants received Ksh14 million which has been acknowledged by the 1st defendant and 4.5 million has been acknowledged by the 2nd defendant.
The plaintiffs in the counter claim stated that they purchased the suit property from the Estate beneficiaries of the deceased. The plaintiff in the counter claim prays for judgment in terms of a declaration that they are the rightful legal owners through purchase of suit land measuring approximately 4 acres being part of Ngata L.R I 13287/135.
In the alternative the plaintiffs pray for an order for refund of the sum of Kshs. 14 million by the 1st Defendant (in the counter claim) and/or estate of the late Elisha Chebii Chesiyna with interest at court from the date of payment until refunded in full. In the further alternative an order for compensation at the current market value of the 4 acres by the Defendants and/or estate of Elisha Chebii Chesiyna.
In defence to counter claims, the 1st defendant admits that vide Sale agreement dated 8th January 2019, the plaintiffs purchased from her and her later husband 4 acres of land being part of parcel number Ngata/LR 13287/135 at Ksh14 million. The 1st defendant in the counter claim filed a similar defence in Nakuru ELC No.47 of 2020
When the matter came up for hearing the plaintiff, Daniel Kibet Lasoi (PW1) adopted his statement as evidence in chief and testified further that he was the administrator of the estate of the deceased. He produced the certificate of confirmation of grant and stated that he did not exclude the beneficiaries of the estate and that no objection was raised in the succession cause. He knew the Chesiynas but did not sell any land to them. He was introduced to them by his late sister, Alice Lasoi. He received Ksh 4.5 million on his account but was not given notice that the amount was deposited for the purchase of land that was registered in the names of William Kipngeno Lasoi. He filed the case and later realized that the money was deposited on 8/4/2019. He did not realize the money deposit because his account had many transactions as he had sold 5 acres for 3.5 million per acre. The transaction does not indicate the purpose of the funds. He went to the farm and realized that someone was working on the firm. He went to Elisha Chesiyna with his nephew Julius Lasoi but the former told him that they had not sold the land. He testified that his father had sold 10 acres to Lokorio and a further 10 acres to Aduo Ventures. His land is 24.36 acres. He prayed for judgment as per plaint.
DW1, George Gisore Mboga, an advocate of the High Court of Kenya by profession, relied on his statement dated 6/2/2024 and further testified that he is familiar with the suit property in Ngata LR 13287/135 because he purchased 4 acres of the said land form Elisha Chebii Chesiyan and Susan C K Chesire vide an agreement dated 12/9/2018. The purchase price was Kshs3.5 million per acre and therefore the sum total was 14,000,000. When the property was sold, the sellers were in occupation and the land was fenced and being used by the sellers to grow crops. They had purchased the land from various individual beneficiaries of Estate of the late Kipng’eno Arap Lasoi. He was informed that Alice was a beneficiary by virtue of being a niece to the plaintiff.
DW1 made payment of Kshs13.000,000 to Elisha Chebii Chesiyna and Susan C K Chesiyan. The purchase price, was 14,000,000 but they paid ksh13,000,000 upon measuring the land and establishing that the land was 3.5 acres as opposed to 4 acres. He produced the RTGS payments and deposit slips. The vendors explained that they had purchased the land from different beneficiaries of the Estate of Lanoi whose estate was to be shared by the beneficiaries. He saw the certificate of confirmation of grant. Beneficiaries have not been confirmed. All the properties are being held by Daniel Kibet Lasoi.
DW2, Evans Juma Matunda also an advocate of the High Court like DW1 adopted his statement as evidence in chief and testified that they were buying 4 acres of Ngata LR 13287/135 at 3.5 million per acre all totaling to 14,000,000/= . The people selling did not have titles. The vendors were in occupation and had occupied the land for more than 5 years. He paid the entire sum of money after taking a bank loan of 10, 000,000. The Money was transferred to Elisha Chesiyna and Susan Chesiyna’s account at credit Bank. He has settled on the land and built structures. The structures are captured in the plaintiff list of documents. There were semi-permanent structures and electricity lines. He had also planted trees on the land. He testified that sometimes in 2019 the plaintiff and another person went to the ground and enquired how he had obtained the land. He was surprised later to be served with a suit by the plaintiff where eviction was prayed for.
Susan C.K. Chesiyna, a business woman, politician, farmer and leader testified as DW3 that the plaintiff is the son of William Kipng’eno Lasoi. Alice Lasoi was the sister to the plaintiff. Alice Lasoi passed away and left behind children who were the plaintiffs nephews and nieces and grandchildren to William Kipng’eno Lasoi . Alice Lasoi went to their office at gatehouse Nakuru estate to see Mr Chesina before passing away. They knew Alice Lasoi had land in Ngata that had been given by her father William Kipngeno Lasoi. The parcel of land was 20 acres of LR No.13287/135. Alice Lasoi sold a portion of 10 acres to John Lokorio. There was a balance of less than 17 acres. Alice approached them as she wanted to sell land because of a problem. Alice Lasoi sold them a portion of one acre and they were told that the administrator was Daniel Lasoi.
The land belonged to Daniel Kibet Lasoi as the administrator of the estate of the deceased. They bought 8.5 acres and took possession immediately. Daniel Lasoi was aware of the transactions. The plaintiff Daniel Kibet Lasoi called them after purchasing the land and they met at Serena in Nairobi in 2019. Part of the money was wired to Daniel Kibet Lasoi’s account to assist his nephews. The money was wired from Equity Bank to Daniel Lesoi’s account No.0941931596, Queensway branch. The purpose of the transfer was purchase of land. When the money reached the account he called her and never complained. He accessed the money on 8/4/2019. When they met, he told her to pay Jenifer, some money. He wrote a cheque of Kshs100,000 to Jeniffer she prayed that it be found that they bought the land from the rightful owners and therefore should be given the land. The witness produced the details of the transactions with the beneficiaries.
Kepha Ombati, also an advocate of the High Court of Kenya relied on his written statement and further testified that he acted for Elisha Chebii Chesiyna, Susan Chebii Chesiyna and Nasha Co.Ltd in transactions related to LR.No.13287/135 in Ngata which belonged to William Kipng’eno Lasoi (deceased). He states that he was informed that Alice Jepngetich Mwashe was the administrator of the Estate of the deceased and that Mercy Munyi, Pamela Lasoi. Betty Munyi, Everlyn Muthoni, Rodgers Njoroge Ngugi and Caren Wanjiku Ngugi were the beneficiaries of the estate. The contact person for the sale was Daniel Kibet Lasoi. He received the relevant documents indicating that the property belonged to William Kipng’eno Lasoi. Pending the conduct of due diligence, he received an e-mail message dated12th August 2015 from Elisha Chesiyna requesting that he sends the draft agreements for the sale in respect of the suit property. He prepared 4 draft sale agreements and sent them to Mr and Mrs Chesiyna. When conducting due diligence, he discovered that the suit property did not have a title and therefore he could not do a search. He informed the Chesiynas who instructed him to pursue a title in the name of the deceased. Though he was availed documents to assist him pursue the title the process stalled due to unavailability of funds.
Submissions by Plaintiff
After the close of the defence case, parties were requested to file submissions. The plaintiff submits that he never sold the parcel of land in dispute to the defendant. Moreover, that the available parcel of land for sale or distribution is only 5 acres. The plaintiff further submitted that the beneficiaries of the estate of the deceased had no capacity to sell the land in dispute. Moreover, that the 1st defendant in the counter claim has circumvented the law in the sale of the deceased land. The plaintiff further submits that the documents produced as agreements were not properly executed because they were not signed by all the parties hence the agreements are void.
On the issue as the whether there exist a constructive trust as between the plaintiffs and the 1st defendant in the counter claim on account of receiving Kshs4,500,000 the plaintiff submits that a constructive trust has not been pleaded. Moreover, that he was not aware of the sum of money amounting to Ksh.4,500,000 deposit in his account. The plaintiff states that he is willing and ready to refund the money.
Defendants’ Submissions
The defendants submit that they have discharged their burden of proof on a balance of probabilities and should be awarded the reliefs prayed. The defendants contend that they have proved that there is constructive trust established and therefore they are beneficial owners of the disputed property. The defendants argue that there is evidence that they paid purchase price to the plaintiff and beneficiaries of the estate. The defendants rely on the decision of the Supreme Court of Kenya at Nairobi in petition no 12 of 2019 Dr Samson Gever & 4 others vs Kenya Medical Research Institute and 3 others where the court held that section 108 of the Evidence Act provides that the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side. The defendants further argue that the plaintiff’s suit is based on faulty foundation because he cannot rightfully challenge the defendants’ acquisition of the land as beneficial owners.
The defendants further submit that the 1st defendant in the counter-claim and her late husband by doctrine of constructive trust were the beneficial owners of the disputed property which they sold to the defendants. The beneficiaries of the estate of William Kipngeno Lasoi and the plaintiff received money a lot of money from the 1st defendant. The plaintiff acknowledged receiving Ksh 4.5 million from the 1st defendant being part of the purchase price. The defendants pray for costs of the suit.
The defendants rightfully submit that the doctrine of constructive trust need not be pleaded but ca be inferred by the court after analyzing the facts of the case.
Analysis and determination
I have considered the pleadings and evidence on record and do find that the plaintiff is the administrator of the estate of William Kipng’eno Lasoi who died domiciled in Kenya on the 9th September 2002 and the plaintiff was appointed the administrator on the 9th January 2003. The certificate of confirmation of grant was issued on 3rd December 2008 wherein all properties of the deceased including the suit properties were distributed to the plaintiff and therefore creating a situation whereby the plaintiff was holding the property in trust for the beneficiaries. The defendants in the main suits entered into agreements of purchase with the beneficiaries of the estate of the late William Kipngeno Lasoi and Susan C.K Chesiyna and her husband in respect of portions of the suit property sometimes in 2018. There is evidence that the defendants paid the the 1st defendant in the counterclaims Ksh 27,000,000 and were given possession of 3.7 acres and 4 acres respectively of the suit land. The plaintiff was paid ksh 4,500.000 out of the 27,000,000.
The first issue for determination is whether the property was lawfully sold to the defendants. On this issue I do find that at the time of sale of the property, it was still registered in the name of the deceased William Kipngeno Arap Lasoi. The plaintiff is the legal representative of the estate of William Kipng’eno Lasoi. The law of succession Act Cap 160 Laws of Kenya pre-empts any dealing with the property of a deceased person without a grant of letters of administration intestate. The propriety can only be distributed to the beneficiaries after payment of all debts and confirmation of the grant by the court. Section 45 of the Law of Succession Act provides:-
45. No intermeddling with property of deceased person
(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.
(2) Any person who contravenes the provisions of this section shall—
(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and
(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.
I do find that the dealings with the property of the deceased by the parties herein were not proper in law and were not supported by the Law of Succession Act Cap 160 laws of Kenya. However, the plaintiff and the beneficiaries acquiesced themselves in this dealings and received a lot money from the defendants and gave the defendants possession of the suit property which has been developed. Looking at the certificate of confirmation of grant, it is presumed that the plaintiff will be holding the suit property in trust for the beneficiaries when the same will be ultimately transmitted to him.
The second issue for consideration is whether the court can invoke the equitable principle of constructive trust. The word equity broadly means a branch of law denoting fundamental principles of justice. It has various meanings according to the context but three definitions from Black’s Law Dictionary, Ninth Edition will suffice for our purpose:
“1.
---2. The body of principles constituting what is fair and right.
3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances ---
4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called “Law” in the narrower sense) when the two conflict”
The Principle of Constructive Trust is a principle of equity which can be invoked to do justice where the property is registered in the names of a person or he is a beneficial owner and he receives money as consideration for the sale of the same property and gives possession but declines to transfer the same due to legal technicalities like in this case where the plaintiff and the beneficiaries of the estate of William Kipngeno Lasoi have received approximately 27,000,000 from the defendants but are not willing to allocate them the land and instead want to evict the defendants.
The doctrines of equity are part of our laws by virtue of Section 3 of the Judicature Act which subordinates common law and the doctrines of equity to the Constitution and written law in that order.
The court of appeal in Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) held that Sections 3(3) of the Law of Contract Act and Section 38 (2) of the Land Act as amended clearly stipulate that the requirement that contracts for disposition of an interest in land should be in writing does not affect the creation or operation of a resulting, implied or constructive trust.
The court further observed that the decision in Yaxley v. Gotts [2000] Ch. 162 (Yaxley’s case) shows that the doctrine of constructive trust and proprietary estoppel overlaps and both are concerned with equity’s intervention to provide relief against unconscionable conduct.
In Yaxley’s case, the English Court of Appeal was dealing with the validity of an oral agreement by purchasers of a house to grant a long lease on the ground floor to a builder in exchange for labour, materials and services supplied. Section 2 of the English Law of Property (miscellaneous provisions) Act, 1989 provided in part:-
“(1) A contract for sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document…
(5) This section does not apply to … and nothing in this section affects the creation or operation of resulting, implied or constructive trusts…”
It was contended in that case that the oral agreement was void and that the doctrine of proprietary estoppel could not operate to give effect to such an agreement. It was held in part that:
“an oral agreement whereby the purchaser of a house promised to grant another, in exchange for materials and services supplied an interest in the property, though void and unenforceable under Section 2 of the Act of 1989, was still enforceable on the basis of constructive trust and Section 2 (5) in circumstances where, previously, the doctrine of part performance or proprietary estoppel might have been relied upon …”
On his part Beldam L. J. said at p. 193 para D
“In my view the provision that nothing in Section 2 of the Act of 1989 is to affect the creation or operation of a resulting, implied or constructive trusts effectively excludes from operation of the cases in which an interest in land might equally well be claimed by relying on constructive trust or proprietary estoppel.”
This court observes that in this case, the certificate of confirmation of grant was issued on 3rd December 2008. The plaintiff received the whole share of the property on the distribution. This means that he is the sole heir in the property as per the grant. It is evident that the plaintiff and the beneficiaries received money amounting to 24,000.000 from the defendants. At the time of the receipt of the money, he was named as the sole heir to the estate of the deceased in respect to the property in dispute. The action pending is the transmission of the property into his name and the names of the beneficiaries who have already sold their interest. However, this court finds that the doctrine of continuing trust is applicable in this case as the plaintiff is holding the property in trust for the beneficiaries. It is evident that the plaintiff and the beneficiaries of the estate of the deceased William Kipngeno Lasoi received money from the defendants and it will be unconscionable for the plaintiff and the beneficiaries to receive money from the defendants and allow them to take possession and apply to this court to evict the plaintiffs. This court further finds that under the Principle of Constructive Trust the plaintiff is duty bound to transfer of a share of land at the value of Kshs 27,000,000 as at 31st December 2019 to the 1st and 2nd defendants.
On the issue as to whether the defendants are entitled to a refund, the defendants have proved that the plaintiff received Kshs4,500,000 out of the 24,000.000 that was paid to Susan C.K Chesiyna whereas the 1st defendant in the counter claim received Kshs24,000,000 being the purchase price for the land in dispute. It is only fair that the defendant be re-imbused their money or be allocated land as promised. The upshot of the above is that the defendants are legally entitled to a refund.
Ultimately, I do make a declaration that the 1st and 2nd defendants are beneficial owners through purchase of the suit land measuring approximately 3.7 acres and 4 acres respectively being part of Ngata L,R NO 13287/135 which they occupy.
In the alternative it is hereby ordered that the 1st and 2nd defendants in the main suit be refunded by the 1st defendant in the counter claim their money amounting to Kshs13,000,000/=, and 14,000.000/= respectively paid as purchase price. The plaintiff to refund the 1st defendant in the counter claim an amount of Ksh 4,500,000 received by him as proceeds of the sales. The 1st and 2nd defendants to vacate the suit land upon refund of the purchase price.