1. The suit was commenced by way of originating summons dated 26th September 2025, brought under Order 37 Rule 8 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya. The applicant seeks the following orders against the respondents sued in the capacity as administrators of the estates of the late Petro Airo Okoth:
a) A declaration that the Applicant is entitled, by way of adverse possession, to a portion of land measuring approximately 0.65 Ha or thereabout, being part of land known as Kabondo/Kasewe/884.
b) A declaration that the late Petro Airo Okoth held the said portion of Kabondo/Kasewe/884 in trust of the Applicant.
c) An order directed at Sub-County Land Registrar, Kosele to register the Applicant as the proprietor of the said portion of land
d) Costs of the suit.
2. The Originating Summons is supported by the affidavit sworn on 26th September 2025. He states that he is a resident of Karoko village in Rachuonyo East Sub-County and grandson of the late Joel Okoth Migeni. He states that the land on which he resides was given to him by the said grandfather in 1974, and that in 1989, he moved onto the land and built a semi-permanent house where he has lived continuously to date- 36 years as per the sworn affidavit. He has planted trees and developed the land with a semi-permanent house, and that he knows no other home.
Applicant’s Case
3. The applicant avers that the late Petro Airo Okoth was registered as proprietor of the larger parcel Kabondo/Kasewe/884, in the course of land adjudication at a time when the Applicant and one Joseph Hosea were still young, and that Petro Aira Okoth held the land in trust in that capacity. He claims he has been in exclusive and uninterrupted possession of the suit property for 36 years.
4. The applicant further avers that upon the death of Petro Airo Okoth, the latter wives filed Succession Cause No. 187 of 2021 at the Chief Magistrates Court at Oyugis, obtained a grant, and proceeded to subdivide the whole of Kabondo/Kasewe/884 in 2021 without allocating him the portion of land he had occupied and developed. He avers that on 23rd January 2024 a family meeting was convened at which it was resolved that he should be recognized as one of the beneficiaries of the estate, and that despite this, nothing further was done.
5. He further states that the late Petro Airo Okoth died without ever laying claim to the portion in the Applicant’s occupation and that the title remains registered in their late husband’s name thus the respondents’ registered in their late husband’s name thus the respondent resistance, notwithstanding that any right of the estate to recover the portion in the Applicant’s possession is in his view, time barred under the limitation of Actions Act.
6. In support of his case, the applicant annexed and at hearing produced the following documentary exhibits;
a) A certified copy of green card for Kabondo/Kasewe/884.
b) The Minutes of the family meeting held on 23rd January 2024.
c) A copy of the title deed of Kabondo/Kasewe/884
d) A copy of an official search dated 25th August 2025
e) Photographs depicting his settlement and development on the disputed portion.
Service
7. The originating summons and supporting affidavit were served upon the respondents on at least two occasions, the least being on 30th January 2026, and affidavit of service filed in court. Despite due service, the Respondents did not enter appearance, file any replying affidavit, or otherwise participate in these proceedings at any stage. The matter was accordingly set down for formal proof.
8. During hearing, the Applicant adopted his supporting affidavit and witness statement as his evidence in chief. He also produced five documentary evidence which were also adopted. He testified that the respondents have taken no active steps to occupy, develop, or assert control over the portion of land in his possession, despite his efforts over time to engage them on the matter. He testified that he wished the court to grant the judgment as prayed for costs. Being unchallenged, this evidence stands as the totality of the material before the court.
Issues for determination
9. The issues arising from the pleadings and the evidence for determination are as follows;
a) Whether the applicant has discharged the burden of proving his claim on a balance of probabilities despite being a formal proof.
b) Whether the Applicant has established the essential elements of adverse possession over the suit property.
c) Whether an alternative or in addition, a trust arose in the Applicant’s favour over the suit property.
d) What orders and reliefs, if any, the court should grant including costs.
Determination
10. It is well established that the non-appearance of a defendant does not relieve a plaintiff of the burden of proving his case. A formal proof hearing is not a rubber stamp, and the court must still be satisfied, on the evidence tendered, that the claimant is entitled to the relief sought. This principle has been affirmed in numerous decisions of the superior courts such as in the case of Kirugi and Another v Kabiya and 3 others (1987) (KLR 347) (Court of Appeal), dealing with undefended suit generally, and with claims of adverse possession in particular; where the courts have repeatedly cautioned that claims of this nature which calls for extinguishing a registered proprietor’s title needs cogent and credible evidence even where uncontested. The court has approached the Applicant’s case with caution in mind and has scrutinised the affidavit evidence, the oral testimony and the documentary exhibit produced.
11. Considering the section 7, 13, 17 and 38 of the limitation of Actions Act. Case of Gabriel Mbui v Mukindia Maranga (1993) eKLR Justice Kuloba stated...
Accordingly, possession taken must not be clandestine; it ripens into a prescriptive title only if it is juridical, and must have none of the vitia possessionis such as clam, vi, aut precario (by stealth, violence or supplication). If in its inception it is vitiated by its clandestine, violent or permissive character, it must lose that character and become open, peaceable and as of right, before it can cause time to run (Chanan Singh, J, in Jandu v Kirpal and another, [1975] E A 225 at p 234). As one reads the decided cases clear requirements may be culled from the cases. That is to say, adverse possession in order to be put up as a plea on which title to land may be claimed, or as a defence to an ejectment suit or suit to recover land from a stranger holding it each of the following requirements must be established on a balance of probability by the person who says that by adverse possession a cause of action has arisen or that a suit against him is barred.
12. The law governing claims for adverse possession is principally found under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22 Laws of Kenya. an action These provisions bar recovery of land, gives a right of action and extinguishes title after a lapse of 12 years and also empowers a trespasser or so called squatter to move to courtafter the expiration of twelve years from the date the right of action accrued.
13. It is now settled principle of law that that mere possession of
land would not ripen into possessory title for the said
purpose. Possessor must have animus possidendi and hold
the land adverse to the title of the true owner.
14. For the said purpose, not only animus possidendi must be
shown to exist, but the same must be shown to exist at the
commencement of the possession.
15. He must continue in the said capacity for the prescribed
period under the Limitation Act. Mere long possession for a
period of more than 12 years without anything more do not
ripen into a title .” Indian case, AIR 2008 SC 346 Annakili
vs. Vedanayagam & Ors
16. Any time an adverse possessor and owner have discussed
the adverse possession, permissive agreement may have occurred, and that destroys adverse possession ( Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holidday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru - v- Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258);”
17. Under Section 24 of the Limitation of Actions Act, such
acknowledgment of ownership has the legal effect of resetting
the limitation periods. (Benson Mukuwa Wachira vs
Assumption Sisters of Nairobi Registered Trustees [2016]
KECA 227 (KLR))
18. This element of permissive possession was well explained in
Gabriel Mbui - v- Mukindia Maranya (1993) eKLR, where
Justice Kuloba that to acts done under licence or Permitted m
by, or with love of, the owner do not amount to adverse
possession and do not give the licensee or permitted entrant
any title under the limitation statute.
19. The rule on permissive possession is that possession does
not become adverse before the end of the period during
which one is permitted to occupy the land and where
possession was consensual or contractual in its inception, it
cannot be called “adverse”.
20.“ Acknowledgment” is defined by Black’s Law Dictionary,
Ninth Edition, to mean –
“1. A recognition of something as being factual;
2. an acceptance of responsibility
3. the act of making it known that one has received something;
4. a formal declaration made in the presence of an authorized officer such as a notary public, by someone who signs a document and confirms that the signature is authentic.”
21.In law, for a trespasser to be said to have acknowledged the
title of the owner of the land, the trespasser must be shown to
have accepted by conduct or by declaration before the period
of twelve years of adverse possession has run out that he, the
trespasser, accepts he is on the land with the owner’s
permission, consent, or acquiescence and is not on the land
adversely to the title of the owner.
22 . In Karima v Kenya Airways Limited (Civil Appeal E015 of
2023)[2025] KECA 1966 (KLR) (21 November 2025)
(Judgment) the court held thus
‘’ the evidence produced, including correspondence authored by the deceased, reveals that rather than asserting ownership as of right, the deceased sought to negotiate or plead with the respondent, acknowledging its ownership and seeking consideration. This negates the requirement of hostile possession.
23. In Mutanu Mwanza v Peter Mutua Ngui & Another [2018]
eKLR (ELC Case No. 219 of 2015) , the Environment and Land
Court held that where a claimant enters land with the
Permission or invitation of the owner, time for purposes of
adverse possession does not begin to run until that permission
is terminated or the occupation becomes adverse to the owner's
interests. Possession founded on licence or consent cannot
simultaneously amount to adverse possession.see Public
Trustee v Wanduru Ndegwa [1984] KLR 314 ,
24. Justice Angote, in the above matter, found that the occupation
of the suit land by the Plaintiff was with the permission of
her father. When the father died, the Plaintiff’s entitlement to
the suit land could onlyy be acquired in a succession cause and
not otherwise.
25. The present case, the Applicant testified that he entered and settled on the disputed portion of land in 1989 after having been allocated the same by his grandfather in 1974. He further testified that he constructed a semi-permanent house, planted trees and has continuously occupied the land as his only home for over thirty-six years. His evidence is corroborated by photographs produced in evidence and remains completely uncontroverted.
26. The certified copy of the green card produced before court shows that parcel No. Kabondo/Kasewe/884 remained registered in the name of the late Petro Airo Okot. There is no evidence of hostile possession since it is apparent that the registered owners had agreed to include the name of the Applicant as one who is entitled to inherit his grandfather’s portion of land and that explains why no step was taken to have him evicted. The minutes of a family meeting confirm this fact. This is essence amounts of acknowledgement of ownership by the title holders and automatically divests the matter from the doctrine of adverse possession
16. These assertions raise the question whether the Applicant's occupation was averse to the registered proprietor from inception or whether it was by virtue of a family arrangement or customary entitlement. The distinction is significant because possession that begins with the permission or consent of the owner is ordinarily not adverse until such permission is withdrawn or until the possession becomes hostile to the owner's title.
17. In the instant case, although the Applicant states that the land belonged his grandfather and was given as his inheritance and that the 1 st Registered owner registered the land when he and his brother were still young, he has not disclosed how and when the said grandfather entered into or acquired ownership. He wants the court to act on the assumption that occupation was hostile and contrary to the owner’s title. He mere says that the deceased was merely registered during adjudication while holding the land for the benefit of other family members and he has not brought forth evidence to confirm how his grandfather occupied the land. The assumption would be the occupation was based on customary systems of land tenure or permissive as such, with the intention of not evicting the family therefrom.
18. In order to extinguish a registered owner’s title to land, the evidence must be watertight as regards the ingredients to be proved before such allegations will be upheld. A decision extinguishing rights protected by the law ought not to be arrived at merely on the basis of allegations without tangible evidence. M’Riria & 5 others v Muthomi [2025] KECA 951 (KLR)
19.As concerns the identity and size of the portion of land sold,
the courts have held that the land alleged to be the subject of
adverse possession proceedings must be definitely identifiable.
( Gatimu Kinguru vs Muya Gathangi (1976) KLR 253 )
20. Nevertheless,the Applicant's pleadings reveal that his principal grievance is that he was entitled to inherit part of the land because the registered proprietor allegedly held it in trust for him. Indeed, reliance upon the family meeting of 23rd January 2024 recognising him as a beneficiary tends to reinforce an assertion of beneficial entitlement rather than Adverse possession.
21. Accordingly, the court is not satisfied that the Applicant has
proved Adverse possession on account on continuous
occupation of the suit portion for a period exceeding twelve
years
22. Likewise in the present case it is not in doubt that the occupation of the land by the Applicant was permissive on account of invitation by his grandfather ,no hostility ever arose even after the grandfather’s death and he confirms attending family discussions. He was agreeable to the administrators conducting the process of distribution ,which implies that if he was an adverse possessor he had relinquished that right .
23. As stated before, mere occupation for a long period of time does not give rise to adverse possession unless the elements of adverse possession are proved .
24. I find that this limb of the Applicants prayer has not been
proved and I reject the same .
25. On the issue of a trust, Black’s Law Dictionary 6 th Edition
page 1817 defines the concept of trust as follows: “
1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property, reflect the settlor’s intent, and be created for a lawful purpose.
26. Trust is a fiduciary duty regarding property and charging
upon a person in whose name the title is registered and
creates equitable obligation as against the beneficiary
27. Under the Trustee Act , “… the expressions “trust” and “trustee”extend to implied and constructive trust, and
cases where the trustee has a beneficial interest in the trust property
28. A trust is considered equity's greatest invention as it is
mandatory that the trustee must manage it for the benefit of
a beneficiary.
29.A customary trust in the context of Kenyan land law, is
a legal concept where land is held by one person or entity,
for the benefit of a group or family members, often across
generations. It is essentially an intergenerational equity
concept where the current holder of the land is entrusted
to hold or manage it for the benefit of another or others.
29. Constructive trusts are a creature of the jurisdiction of equity; and implied by the Courts when it is unconscionable for a Defendant with the legal title to property to claim that property or some part beneficially to the prejudice of the claimant.
30. The trust is created independently of the intentions of the parties. It is the conduct of the parties, and in particular the Defendant, that governs the jurisdiction of the Court to impose it
31. This principle derives life from the case of Pallant versus
Morgan [1953] Ch., 43.
32. According to the “Pallant versus Morgan equity ”, if parties
agree that one will acquire some specific property for the joint
benefit of both of them on terms yet to be agreed, and one, in
reliance on another’s agreement, is induced to refrain from
attempting to acquire the property, equity will not permit the
other, when he acquires the property, to insist on retaining the
whole of the benefit for himself to the exclusion of other.
33. The facts in the above case are that the agents of two
neighbouring landowners orally agreed in the auction room
that the Plaintiff’s agent would refrain from bidding at auction
and that the Defendant, if his agent’s bid was successful,
would divide the land according to an agreed formula, the
details of which were to be agreed later. The Defendant’s agent
was successful, but when the parties failed to agree on the
details of division the Defendant retained the whole of the land
for himself. It was held that although the agreement was
incomplete in its detail and too uncertain to be specifically
enforceable, the Defendant held the land on trust for himself
and the Plaintiff jointly, and that it would amount to
sanctioning a fraud on the Defendant’s part to allow him to
retain it.
33.The principle was reviewed by the Court of Appeal in Banner
Homes PLC versus Luff Developments Ltd [2000] 2 WLR 772.
In that case also, two rival bidders made an arrangement
concerning the purchase of property. The Defendant
conducted himself in a way inconsistent with the agreement,
and in an inequitable manner.
It was held that a constructive trust (or a duty to account)
arose in the circumstances. It was essential that the
circumstances made it inequitable for the acquiring party to
retain the property for himself in a manner inconsistent with
the arrangement or understanding on which the non
acquiring party had acted.
34. Chadwick L.J., observed that:
“ The equity is invoked where the Defendant has acquired property in circumstances where it would be inequitable to allow him to treat it as his own, and where, because it would be inequitable to allow him to treat the property as his own, it is necessary to impose on him the obligations of a trustee in relation to it”.
35. In Gissing versus Gissing [1971] AC 886, Diplock L.J.,
observed that; “ A constructive trust is created by a
transaction between the trustee and the cestui que trust
in connection with the acquisition by the trustee of a
legal estate in land, whenever the trustee has so
conducted himself that it would be inequitable to allow
him to deny to the cestui que trust a beneficial interest in
the property.
36. Principles of constructive trusts are not alien to this jurisdiction Equity is formally received into Kenyan law under Section 3(1)(c) of the Judicature Act (Cap 8
Kenyan courts apply English doctrines of equity in force in
England on, provided they suit local circumstances. Article
159(2)(d) of the Constitution of Kenya, 2010 , reinforces
equity by mandating that courts administer justice without
undue regard to procedural technicalities.
37. Courts in Kenya have codified and recognised the so called customary trusts not through formal statute writing but through progressive judicial interpretation in their pronouncements, and have ultimately elevated them to overriding land interest.
38. A customary trust in the context of Kenyan land law, is
a legal concept where land is held by one person or entity,
for the benefit of a group or family members, often across
generations. It is essentially an intergenerational equity
concept where the current holder of the land is entrusted
to hold or manage it for the benefit of another or others
39. Our apex Court in the case of Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) 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 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. .”
38. In James Archer & Ano v Inger Christine Archer & 2 Others (2023) KECA 298 (KLR) the Court of Appeal refering to the definition of trust in - Black’s Law Dictionary , went on to state that;
-“ There are three types of trusts that can arise with respect to land, as explained in Elements of Land Law , 5 th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11:Trusts relating to land can be classified as either express trusts or implied trusts, the latter category subdividing into further categories of resulting and constructive trusts ... Consistently with the characteristic preoccupation of equity, the primacy of intention is exemplified in each of these three cases of trust. The trust is the express very embodiment of an intention explicitly formulated by a legal owner regarding the beneficial ownership of his land. Implied trusts arise by operation of law, but do so against a background of actual or presumed beneficial intentions as to beneficial title. Yet, although premised alike upon intended beneficial ownership, the resulting trust and the constructive trust have traditionally enjoyed distinct spheres of operation.”
39. The pronouncements of the Supreme Court of Kenya in Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others(Supra) that held as follows:“
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 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 under law, and included a constructive trust. Section 28 of the 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 imported into a land sale agreement to defeat a registered title.”
40. From the above, it can be deduced that a constructive trust is formed whenever,
(1) there is a common intention between the parties that the claimant has a beneficial interest in the property; and
(2) the claimant acted to his or her detriment in the reasonable belief that by so acting he or she was acquiring a beneficial interest in the land—in other words, it must be inequitable to allow the Defendant to insist on retaining the whole property to the exclusion of the claimant.
41 . Where a common intention is not expressly stated, it can be
implied by Court when good conscience demands. See; Grant
versus Edwards [1986] Ch. 638; and Deane J in Muschinski
versus Dodds (1985) 160 CLR 583 at 614. Millet L.J., in Lonrho
versus Fayed (No 2) [1992] 1 WLR 1, makes the matter plain
when he stated that:
‘’It is… the independent jurisdiction of equity as a Court of conscience to grant relief for every species of fraud and over unconscionable conduct. When appropriate, the Court will grant a proprietary remedy to restore to the Plaintiff property of which he has been wrongly deprived, or to prevent the Defendant from retaining
a benefit which he has obtained by his own wrong’
44.The Supreme Court finally settled the question regarding
customary land held in trust in Kiebia v M’lintari & another [2018] KESC 22 (KLR), inter alia as follows:
“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the rights to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act . Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be those other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.”
45. Here is what the Apex Court went on to state what some of
the elements that would qualify a claimant as a trustee in
Kebia supra thus:
“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:
1.The land in question was before registration, family, clan or group land;
2.The claimant belongs to such family, clan, or group;
3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous;
4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances;
5.The claim is directed against the registered proprietor who is a member of the family, clan or group.”
46. Roche v Roche & another [2025] KECA 1637 (KLR) the court
of Appeal stated thus:
‘’Consequently, upon re-evaluating the evidence in the record of appeal afresh, and considering the rival submissions, we arrive at our own conclusion that Cyprian is entitled to a share of her father’s property just like her brothers, by virtue of Section 38 L.S.A and Article 27. Therefore, the learned Judge was correct in holding that John held the one acre of their father’s estate in trust for her. We find that the land on which the homestead stands is held in trust on behalf of Cyprian as instructed by the deceased matriarch.
47. P ossession confers possessory title upon a holder of land,
good and enforceable against any other persons who cannot
show a better title.’’
48. In Ugandan case of Boiti Bonny versus Imalingat Lawrence Court of Appeal Civil Appeal No. 239 of 2016 Gashirabaki J.A, held that: “Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v.Whitlock(1865) LR 1 QB1).
The right to possession of land can be inher
[...truncated]
a) A declaration that the Applicant is entitled, by way of adverse possession, to a portion of land measuring approximately 0.65 Ha or thereabout, being part of land known as Kabondo/Kasewe/884.
b) A declaration that the late Petro Airo Okoth held the said portion of Kabondo/Kasewe/884 in trust of the Applicant.
c) An order directed at Sub-County Land Registrar, Kosele to register the Applicant as the proprietor of the said portion of land
d) Costs of the suit.
2. The Originating Summons is supported by the affidavit sworn on 26th September 2025. He states that he is a resident of Karoko village in Rachuonyo East Sub-County and grandson of the late Joel Okoth Migeni. He states that the land on which he resides was given to him by the said grandfather in 1974, and that in 1989, he moved onto the land and built a semi-permanent house where he has lived continuously to date- 36 years as per the sworn affidavit. He has planted trees and developed the land with a semi-permanent house, and that he knows no other home.
Applicant’s Case
3. The applicant avers that the late Petro Airo Okoth was registered as proprietor of the larger parcel Kabondo/Kasewe/884, in the course of land adjudication at a time when the Applicant and one Joseph Hosea were still young, and that Petro Aira Okoth held the land in trust in that capacity. He claims he has been in exclusive and uninterrupted possession of the suit property for 36 years.
4. The applicant further avers that upon the death of Petro Airo Okoth, the latter wives filed Succession Cause No. 187 of 2021 at the Chief Magistrates Court at Oyugis, obtained a grant, and proceeded to subdivide the whole of Kabondo/Kasewe/884 in 2021 without allocating him the portion of land he had occupied and developed. He avers that on 23rd January 2024 a family meeting was convened at which it was resolved that he should be recognized as one of the beneficiaries of the estate, and that despite this, nothing further was done.
5. He further states that the late Petro Airo Okoth died without ever laying claim to the portion in the Applicant’s occupation and that the title remains registered in their late husband’s name thus the respondents’ registered in their late husband’s name thus the respondent resistance, notwithstanding that any right of the estate to recover the portion in the Applicant’s possession is in his view, time barred under the limitation of Actions Act.
6. In support of his case, the applicant annexed and at hearing produced the following documentary exhibits;
a) A certified copy of green card for Kabondo/Kasewe/884.
b) The Minutes of the family meeting held on 23rd January 2024.
c) A copy of the title deed of Kabondo/Kasewe/884
d) A copy of an official search dated 25th August 2025
e) Photographs depicting his settlement and development on the disputed portion.
Service
7. The originating summons and supporting affidavit were served upon the respondents on at least two occasions, the least being on 30th January 2026, and affidavit of service filed in court. Despite due service, the Respondents did not enter appearance, file any replying affidavit, or otherwise participate in these proceedings at any stage. The matter was accordingly set down for formal proof.
8. During hearing, the Applicant adopted his supporting affidavit and witness statement as his evidence in chief. He also produced five documentary evidence which were also adopted. He testified that the respondents have taken no active steps to occupy, develop, or assert control over the portion of land in his possession, despite his efforts over time to engage them on the matter. He testified that he wished the court to grant the judgment as prayed for costs. Being unchallenged, this evidence stands as the totality of the material before the court.
Issues for determination
9. The issues arising from the pleadings and the evidence for determination are as follows;
a) Whether the applicant has discharged the burden of proving his claim on a balance of probabilities despite being a formal proof.
b) Whether the Applicant has established the essential elements of adverse possession over the suit property.
c) Whether an alternative or in addition, a trust arose in the Applicant’s favour over the suit property.
d) What orders and reliefs, if any, the court should grant including costs.
Determination
10. It is well established that the non-appearance of a defendant does not relieve a plaintiff of the burden of proving his case. A formal proof hearing is not a rubber stamp, and the court must still be satisfied, on the evidence tendered, that the claimant is entitled to the relief sought. This principle has been affirmed in numerous decisions of the superior courts such as in the case of Kirugi and Another v Kabiya and 3 others (1987) (KLR 347) (Court of Appeal), dealing with undefended suit generally, and with claims of adverse possession in particular; where the courts have repeatedly cautioned that claims of this nature which calls for extinguishing a registered proprietor’s title needs cogent and credible evidence even where uncontested. The court has approached the Applicant’s case with caution in mind and has scrutinised the affidavit evidence, the oral testimony and the documentary exhibit produced.
11. Considering the section 7, 13, 17 and 38 of the limitation of Actions Act. Case of Gabriel Mbui v Mukindia Maranga (1993) eKLR Justice Kuloba stated...
Accordingly, possession taken must not be clandestine; it ripens into a prescriptive title only if it is juridical, and must have none of the vitia possessionis such as clam, vi, aut precario (by stealth, violence or supplication). If in its inception it is vitiated by its clandestine, violent or permissive character, it must lose that character and become open, peaceable and as of right, before it can cause time to run (Chanan Singh, J, in Jandu v Kirpal and another, [1975] E A 225 at p 234). As one reads the decided cases clear requirements may be culled from the cases. That is to say, adverse possession in order to be put up as a plea on which title to land may be claimed, or as a defence to an ejectment suit or suit to recover land from a stranger holding it each of the following requirements must be established on a balance of probability by the person who says that by adverse possession a cause of action has arisen or that a suit against him is barred.
12. The law governing claims for adverse possession is principally found under Sections 7, 13, 17 and 38 of the Limitation of Actions Act, Cap. 22 Laws of Kenya. an action These provisions bar recovery of land, gives a right of action and extinguishes title after a lapse of 12 years and also empowers a trespasser or so called squatter to move to courtafter the expiration of twelve years from the date the right of action accrued.
13. It is now settled principle of law that that mere possession of
land would not ripen into possessory title for the said
purpose. Possessor must have animus possidendi and hold
the land adverse to the title of the true owner.
14. For the said purpose, not only animus possidendi must be
shown to exist, but the same must be shown to exist at the
commencement of the possession.
15. He must continue in the said capacity for the prescribed
period under the Limitation Act. Mere long possession for a
period of more than 12 years without anything more do not
ripen into a title .” Indian case, AIR 2008 SC 346 Annakili
vs. Vedanayagam & Ors
16. Any time an adverse possessor and owner have discussed
the adverse possession, permissive agreement may have occurred, and that destroys adverse possession ( Cobb v Lane [1952] 1 All E R 1199; Denning, MR, in Wallis’s Cayton Bay Holidday Camp Ltd v Shell-Mex and B P Ltd [1974] 3 All ER 575 at p 580; Chanan Singh, J, Jandu v Kirpal and another (1975) EA 225 at pp 233, 234, 237; Madan, J (as he then was), in Gatimu Kinguru - v- Muya Gathangi, 1[1976] Kenya L R 253, at pp 257, 258);”
17. Under Section 24 of the Limitation of Actions Act, such
acknowledgment of ownership has the legal effect of resetting
the limitation periods. (Benson Mukuwa Wachira vs
Assumption Sisters of Nairobi Registered Trustees [2016]
KECA 227 (KLR))
18. This element of permissive possession was well explained in
Gabriel Mbui - v- Mukindia Maranya (1993) eKLR, where
Justice Kuloba that to acts done under licence or Permitted m
by, or with love of, the owner do not amount to adverse
possession and do not give the licensee or permitted entrant
any title under the limitation statute.
19. The rule on permissive possession is that possession does
not become adverse before the end of the period during
which one is permitted to occupy the land and where
possession was consensual or contractual in its inception, it
cannot be called “adverse”.
20.“ Acknowledgment” is defined by Black’s Law Dictionary,
Ninth Edition, to mean –
“1. A recognition of something as being factual;
2. an acceptance of responsibility
3. the act of making it known that one has received something;
4. a formal declaration made in the presence of an authorized officer such as a notary public, by someone who signs a document and confirms that the signature is authentic.”
21.In law, for a trespasser to be said to have acknowledged the
title of the owner of the land, the trespasser must be shown to
have accepted by conduct or by declaration before the period
of twelve years of adverse possession has run out that he, the
trespasser, accepts he is on the land with the owner’s
permission, consent, or acquiescence and is not on the land
adversely to the title of the owner.
22 . In Karima v Kenya Airways Limited (Civil Appeal E015 of
2023)[2025] KECA 1966 (KLR) (21 November 2025)
(Judgment) the court held thus
‘’ the evidence produced, including correspondence authored by the deceased, reveals that rather than asserting ownership as of right, the deceased sought to negotiate or plead with the respondent, acknowledging its ownership and seeking consideration. This negates the requirement of hostile possession.
23. In Mutanu Mwanza v Peter Mutua Ngui & Another [2018]
eKLR (ELC Case No. 219 of 2015) , the Environment and Land
Court held that where a claimant enters land with the
Permission or invitation of the owner, time for purposes of
adverse possession does not begin to run until that permission
is terminated or the occupation becomes adverse to the owner's
interests. Possession founded on licence or consent cannot
simultaneously amount to adverse possession.see Public
Trustee v Wanduru Ndegwa [1984] KLR 314 ,
24. Justice Angote, in the above matter, found that the occupation
of the suit land by the Plaintiff was with the permission of
her father. When the father died, the Plaintiff’s entitlement to
the suit land could onlyy be acquired in a succession cause and
not otherwise.
25. The present case, the Applicant testified that he entered and settled on the disputed portion of land in 1989 after having been allocated the same by his grandfather in 1974. He further testified that he constructed a semi-permanent house, planted trees and has continuously occupied the land as his only home for over thirty-six years. His evidence is corroborated by photographs produced in evidence and remains completely uncontroverted.
26. The certified copy of the green card produced before court shows that parcel No. Kabondo/Kasewe/884 remained registered in the name of the late Petro Airo Okot. There is no evidence of hostile possession since it is apparent that the registered owners had agreed to include the name of the Applicant as one who is entitled to inherit his grandfather’s portion of land and that explains why no step was taken to have him evicted. The minutes of a family meeting confirm this fact. This is essence amounts of acknowledgement of ownership by the title holders and automatically divests the matter from the doctrine of adverse possession
16. These assertions raise the question whether the Applicant's occupation was averse to the registered proprietor from inception or whether it was by virtue of a family arrangement or customary entitlement. The distinction is significant because possession that begins with the permission or consent of the owner is ordinarily not adverse until such permission is withdrawn or until the possession becomes hostile to the owner's title.
17. In the instant case, although the Applicant states that the land belonged his grandfather and was given as his inheritance and that the 1 st Registered owner registered the land when he and his brother were still young, he has not disclosed how and when the said grandfather entered into or acquired ownership. He wants the court to act on the assumption that occupation was hostile and contrary to the owner’s title. He mere says that the deceased was merely registered during adjudication while holding the land for the benefit of other family members and he has not brought forth evidence to confirm how his grandfather occupied the land. The assumption would be the occupation was based on customary systems of land tenure or permissive as such, with the intention of not evicting the family therefrom.
18. In order to extinguish a registered owner’s title to land, the evidence must be watertight as regards the ingredients to be proved before such allegations will be upheld. A decision extinguishing rights protected by the law ought not to be arrived at merely on the basis of allegations without tangible evidence. M’Riria & 5 others v Muthomi [2025] KECA 951 (KLR)
19.As concerns the identity and size of the portion of land sold,
the courts have held that the land alleged to be the subject of
adverse possession proceedings must be definitely identifiable.
( Gatimu Kinguru vs Muya Gathangi (1976) KLR 253 )
20. Nevertheless,the Applicant's pleadings reveal that his principal grievance is that he was entitled to inherit part of the land because the registered proprietor allegedly held it in trust for him. Indeed, reliance upon the family meeting of 23rd January 2024 recognising him as a beneficiary tends to reinforce an assertion of beneficial entitlement rather than Adverse possession.
21. Accordingly, the court is not satisfied that the Applicant has
proved Adverse possession on account on continuous
occupation of the suit portion for a period exceeding twelve
years
22. Likewise in the present case it is not in doubt that the occupation of the land by the Applicant was permissive on account of invitation by his grandfather ,no hostility ever arose even after the grandfather’s death and he confirms attending family discussions. He was agreeable to the administrators conducting the process of distribution ,which implies that if he was an adverse possessor he had relinquished that right .
23. As stated before, mere occupation for a long period of time does not give rise to adverse possession unless the elements of adverse possession are proved .
24. I find that this limb of the Applicants prayer has not been
proved and I reject the same .
25. On the issue of a trust, Black’s Law Dictionary 6 th Edition
page 1817 defines the concept of trust as follows: “
1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property, reflect the settlor’s intent, and be created for a lawful purpose.
26. Trust is a fiduciary duty regarding property and charging
upon a person in whose name the title is registered and
creates equitable obligation as against the beneficiary
27. Under the Trustee Act , “… the expressions “trust” and “trustee”extend to implied and constructive trust, and
cases where the trustee has a beneficial interest in the trust property
28. A trust is considered equity's greatest invention as it is
mandatory that the trustee must manage it for the benefit of
a beneficiary.
29.A customary trust in the context of Kenyan land law, is
a legal concept where land is held by one person or entity,
for the benefit of a group or family members, often across
generations. It is essentially an intergenerational equity
concept where the current holder of the land is entrusted
to hold or manage it for the benefit of another or others.
29. Constructive trusts are a creature of the jurisdiction of equity; and implied by the Courts when it is unconscionable for a Defendant with the legal title to property to claim that property or some part beneficially to the prejudice of the claimant.
30. The trust is created independently of the intentions of the parties. It is the conduct of the parties, and in particular the Defendant, that governs the jurisdiction of the Court to impose it
31. This principle derives life from the case of Pallant versus
Morgan [1953] Ch., 43.
32. According to the “Pallant versus Morgan equity ”, if parties
agree that one will acquire some specific property for the joint
benefit of both of them on terms yet to be agreed, and one, in
reliance on another’s agreement, is induced to refrain from
attempting to acquire the property, equity will not permit the
other, when he acquires the property, to insist on retaining the
whole of the benefit for himself to the exclusion of other.
33. The facts in the above case are that the agents of two
neighbouring landowners orally agreed in the auction room
that the Plaintiff’s agent would refrain from bidding at auction
and that the Defendant, if his agent’s bid was successful,
would divide the land according to an agreed formula, the
details of which were to be agreed later. The Defendant’s agent
was successful, but when the parties failed to agree on the
details of division the Defendant retained the whole of the land
for himself. It was held that although the agreement was
incomplete in its detail and too uncertain to be specifically
enforceable, the Defendant held the land on trust for himself
and the Plaintiff jointly, and that it would amount to
sanctioning a fraud on the Defendant’s part to allow him to
retain it.
33.The principle was reviewed by the Court of Appeal in Banner
Homes PLC versus Luff Developments Ltd [2000] 2 WLR 772.
In that case also, two rival bidders made an arrangement
concerning the purchase of property. The Defendant
conducted himself in a way inconsistent with the agreement,
and in an inequitable manner.
It was held that a constructive trust (or a duty to account)
arose in the circumstances. It was essential that the
circumstances made it inequitable for the acquiring party to
retain the property for himself in a manner inconsistent with
the arrangement or understanding on which the non
acquiring party had acted.
34. Chadwick L.J., observed that:
“ The equity is invoked where the Defendant has acquired property in circumstances where it would be inequitable to allow him to treat it as his own, and where, because it would be inequitable to allow him to treat the property as his own, it is necessary to impose on him the obligations of a trustee in relation to it”.
35. In Gissing versus Gissing [1971] AC 886, Diplock L.J.,
observed that; “ A constructive trust is created by a
transaction between the trustee and the cestui que trust
in connection with the acquisition by the trustee of a
legal estate in land, whenever the trustee has so
conducted himself that it would be inequitable to allow
him to deny to the cestui que trust a beneficial interest in
the property.
36. Principles of constructive trusts are not alien to this jurisdiction Equity is formally received into Kenyan law under Section 3(1)(c) of the Judicature Act (Cap 8
Kenyan courts apply English doctrines of equity in force in
England on, provided they suit local circumstances. Article
159(2)(d) of the Constitution of Kenya, 2010 , reinforces
equity by mandating that courts administer justice without
undue regard to procedural technicalities.
37. Courts in Kenya have codified and recognised the so called customary trusts not through formal statute writing but through progressive judicial interpretation in their pronouncements, and have ultimately elevated them to overriding land interest.
38. A customary trust in the context of Kenyan land law, is
a legal concept where land is held by one person or entity,
for the benefit of a group or family members, often across
generations. It is essentially an intergenerational equity
concept where the current holder of the land is entrusted
to hold or manage it for the benefit of another or others
39. Our apex Court in the case of Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others [2023] KESC 106 (KLR) 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 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. .”
38. In James Archer & Ano v Inger Christine Archer & 2 Others (2023) KECA 298 (KLR) the Court of Appeal refering to the definition of trust in - Black’s Law Dictionary , went on to state that;
-“ There are three types of trusts that can arise with respect to land, as explained in Elements of Land Law , 5 th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11:Trusts relating to land can be classified as either express trusts or implied trusts, the latter category subdividing into further categories of resulting and constructive trusts ... Consistently with the characteristic preoccupation of equity, the primacy of intention is exemplified in each of these three cases of trust. The trust is the express very embodiment of an intention explicitly formulated by a legal owner regarding the beneficial ownership of his land. Implied trusts arise by operation of law, but do so against a background of actual or presumed beneficial intentions as to beneficial title. Yet, although premised alike upon intended beneficial ownership, the resulting trust and the constructive trust have traditionally enjoyed distinct spheres of operation.”
39. The pronouncements of the Supreme Court of Kenya in Shah & 7 others vs. Mombasa Bricks & Tiles Limited & 5 others(Supra) that held as follows:“
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 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 under law, and included a constructive trust. Section 28 of the 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 imported into a land sale agreement to defeat a registered title.”
40. From the above, it can be deduced that a constructive trust is formed whenever,
(1) there is a common intention between the parties that the claimant has a beneficial interest in the property; and
(2) the claimant acted to his or her detriment in the reasonable belief that by so acting he or she was acquiring a beneficial interest in the land—in other words, it must be inequitable to allow the Defendant to insist on retaining the whole property to the exclusion of the claimant.
41 . Where a common intention is not expressly stated, it can be
implied by Court when good conscience demands. See; Grant
versus Edwards [1986] Ch. 638; and Deane J in Muschinski
versus Dodds (1985) 160 CLR 583 at 614. Millet L.J., in Lonrho
versus Fayed (No 2) [1992] 1 WLR 1, makes the matter plain
when he stated that:
‘’It is… the independent jurisdiction of equity as a Court of conscience to grant relief for every species of fraud and over unconscionable conduct. When appropriate, the Court will grant a proprietary remedy to restore to the Plaintiff property of which he has been wrongly deprived, or to prevent the Defendant from retaining
a benefit which he has obtained by his own wrong’
44.The Supreme Court finally settled the question regarding
customary land held in trust in Kiebia v M’lintari & another [2018] KESC 22 (KLR), inter alia as follows:
“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the rights to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act . Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be those other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.”
45. Here is what the Apex Court went on to state what some of
the elements that would qualify a claimant as a trustee in
Kebia supra thus:
“Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:
1.The land in question was before registration, family, clan or group land;
2.The claimant belongs to such family, clan, or group;
3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous;
4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances;
5.The claim is directed against the registered proprietor who is a member of the family, clan or group.”
46. Roche v Roche & another [2025] KECA 1637 (KLR) the court
of Appeal stated thus:
‘’Consequently, upon re-evaluating the evidence in the record of appeal afresh, and considering the rival submissions, we arrive at our own conclusion that Cyprian is entitled to a share of her father’s property just like her brothers, by virtue of Section 38 L.S.A and Article 27. Therefore, the learned Judge was correct in holding that John held the one acre of their father’s estate in trust for her. We find that the land on which the homestead stands is held in trust on behalf of Cyprian as instructed by the deceased matriarch.
47. P ossession confers possessory title upon a holder of land,
good and enforceable against any other persons who cannot
show a better title.’’
48. In Ugandan case of Boiti Bonny versus Imalingat Lawrence Court of Appeal Civil Appeal No. 239 of 2016 Gashirabaki J.A, held that: “Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v.Whitlock(1865) LR 1 QB1).
The right to possession of land can be inher
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