Introduction
1. Vide the Memorandum of Appeal dated 20 th February 2025, PATRICK AGUSIOMA preferred the present appeal having been aggrieved by the judgment and decree in Hamisi MCEL No. 23 of 2023 delivered on 23 rd January 2025.
2. The grounds of the appeal are that: -
i. The learned trial Magistrate grossly erred in the evaluation of the evidence before him.
ii. The learned trial Magistrate grossly erred in not appreciating the principle of constructive estoppel as it applied in the circumstances of this case.
iii. The learned trial Magistrate grossly erred in failing to find for the appellant on adverse possession.
iv. The learned trial Magistrate erred in not applying the principles of equity.
v. The final orders constitute unjust enrichment on the part of the Respondent
3. The appellant sought orders that the appellant’s counter-claim be allowed, and the Respondent be condemned to pay costs both of the lower court and for the appeal.
4. A brief background of the appeal is that the appellant was sued by the Respondent vide the plaint dated 23 rd October 2023 in HAMISI PMC ELC CASE NO. 23 OF 2023(the suit). The subject matter of the suit was a parcel of land known as KAKAMEGA/CHAMAKANGA/88 herein called the suit land.
5. The Respondent’s case in the suit was that she was the current absolute proprietor of the suit land, which she obtained on 30/5/2023 pursuant to Succession to the estate of Ezekiel Mangi Muriga, deceased, who was her father and previous registered owner of the suit land. That she desired to take exclusive possession of the land, but the appellant was occupying a portion thereof, which he had refused, neglected, or failed to voluntarily vacate. She therefore sought an order of immediate eviction of the appellant from the suit land and demolition of any illegal structures erected on the said property. She also sought costs of the suit.
6. In response to the Respondent’s claim, the appellant had filed the Defence and Counterclaim dated 25 th January 2024. He denied the Respondent’s claim and averred that he bought part of the suit land measuring 1 acre from one Gurera Mukanzi Mange, the wife of the registered owner who was then deceased, took possession of the sold portion in 2004 and built a homestead thereon in 2005, and that he has been in actual, exclusive use and possession thereof since then to date, a period of almost 20 years. That he had built 2 semi-permanent houses, toilets, and has been farming thereon. That the Respondent undertook succession to the estate of the deceased secretly without informing him, yet he was a liability in the estate. The appellant therefore sought, vide the counterclaim, that the suit be dismissed, a declaration be made that he had acquired 1 acre of the suit land through adverse possession, an order for sub-division of the suit land and transfer of the 1 acre thereof to him, and costs of the suit and of the counterclaim.
7. The Respondent’s reply to defence and defence to counterclaim dated 5 th February 2024 was that the appellant was a trespasser on the suit land with no rights of proprietorship.
8. The suit was heard before the trial court which, vide its judgment, now appealed against, found that the Respondent had proved her case against the appellant on a balance of probabilities. The trial court entered judgment in favour of the appellant for an eviction order, costs and interest.
Submissions
9. Pursuant to directions given on 10/3/2026, the appeal was heard by way of written submissions. Written submissions dated 26 th May 2026 were filed on behalf of the Respondent by M. Kiveu, Advocate, while written submissions dated 19 th March 2026 were filed on behalf of the Respondent by Amasakha & Company Advocates.
Analysis and determination
10. This being a first appeal is a retrial of the suit wherein the court has a duty to re-examine and re-analyze the evidence placed before the trial court, as held in Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first ground of appeal faults the trial court for the manner in which it evaluated the evidence before it.
11. It was submitted on behalf of the appellant that the Respondent alleged trespass but failed to discharge the burden of proof. That the Respondent failed to prove trespass. That the evidence showed that the appellant entered the land with the consent of the seller and the Respondent’s knowledge.
On behalf of the Respondent, it was submitted that the trial court properly evaluated the evidence and correctly found that there was no proof of payment, no proof of adverse possession, and that there is no basis for appellate interference.
The Respondent’s suit was based on the tort of trespass while the appellant’s counter-claim was based on purchase and occupation leading to adverse possession.
12. The evidence placed before the trial court by the parties comprised the testimony of the Respondent and the exhibits she produced, and the testimony of the appellant and the exhibits he produced. The Respondent, who testified as PW1, adopted the contents of her witness statement dated 23/10/2023 as her evidence. The record shows that she had rehashed the contents of the plaint in the witness statement.
13. On cross-examination, she stated that the copy of the sale agreement that the appellant possessed had her signature. That the appellant built a house on the land and was in occupation. That the land belongs to her father. That her mother had no authority/capacity to sell the land. The Respondent produced 2 documents as exhibits; namely, the title deed for the suit land and the Certificate of Confirmation of Grant.
14. The appellant similarly adopted the contents of his witness statement as his evidence in chief. He had stated in his witness statement that he bought part of the suit land measuring 1 acre at Kshs 200,000/= in the year 2004 from Gurera Mukangi Mange. That the Respondent was one of the witnesses to the sale. That he took possession of the land in the year 2004 and developed the land. The appellant produced a copy of the certificate of death for Ezekiel Manga and the land Sale agreement as exhibits.
15. The record shows that the trial court in the judgment considered the evidence before it, relied on Section 26 of the Land Registration Act and case law, and found that as the widow of the deceased registered owner had not taken out a grant to the estate of the deceased, the purported sale was therefore not only illegal but criminal. That the appellant’s occupation of the suit land was on the basis of an unlawful sale and could not result in adverse possession.
16. I have considered the pleadings filed, evidence placed before the trial court and the submissions made herein. It is clear from the evidence that the suit land is registered in the name of the Respondent upon transmission from the deceased registered owner and that the appellant is occupying part of the land. The Respondent’s case is that the appellant’s occupation amounts to trespass. The appellant’s explanation for his presence on the suit land is that he bought it from the widow of the deceased and that he has been on the land for more than 12 years; hence is entitled to the occupied portion by adverse possession.
17. The appellant entered the suit land when the owner was deceased, and no succession had been undertaken in respect of the deceased’s estate. Under the provisions of section 45 of the Law of Succession Act, both the sale transaction and entry onto and occupation of the suit land amount to acts of intermeddling with the estate of the deceased. The appellant had no transaction with the deceased. He was not a liability in the estate of the deceased.
I find that the trial court did not err in its apprehension and analysis of the evidence placed before it.
The next ground of appeal is that the trial court erred in not appreciating the principle of constructive estoppel as it applied in the circumstances of this case.
18. It was submitted on behalf of the appellant that the trial court overlooked the doctrine of proprietary estoppel, which prevents a landowner from unconscionably denying other beneficial interests. Counsel submitted that the doctrine is now anchored in Article 10(2) (b) of the Constitution, which binds courts to apply the national value of equity. Counsel relied on the case of Macharia Mwangi Maina & 87 others -vs- Davidson Mwangi Kagiri, Civil Appeal No, 26 & 27 of 2024, where Counsel submitted that the court affirmed that constructive trust and proprietary estoppel apply where justice and good conscience demand.
19. On behalf of the Respondent, it was submitted that equity follows the law. That equity cannot override statutory provisions and lack of proof.
20. I have considered the evidence placed before the Court. The appellant produced a land sale agreement. It was between him and the mother of the Respondent and not the Respondent. His case was that the Respondent signed the agreement as a witness. This, however, did not make the Respondent liable under the agreement. There is no evidence that the purchase price was paid to the Respondent or that the Respondent was to deliver the land to the appellant. A constructive trust would apply between the parties to the agreement as was the case in the authority cited by the appellant. I find that ground 2 of the appeal has not been proved.
The third ground of appeal faults the trial court for failing to find in favour of the appellant on adverse possession.
21. Having found that the entry onto the suit land was after the death of the deceased registered owner and during the period when his estate had not been succeeded, adverse possession could not arise. The trial court correctly found so. Ground 3 of the appeal equally fails.
22. The last ground of appeal is that the final orders of the court constituted unjust enrichment on the part of the Respondent.
It was submitted on behalf of the appellant that the eviction order unjustly enriches the Respondent. That unjust enrichment occurs when a party receives a benefit at another’s expense, and it would be unjust for them to retain it. That the elements are that the Respondent has been enriched, that the enrichment is at the expense of the appellant, and that it is unjust to allow her to retain the benefit. That the appellant has lost both his purchase money and the land he developed over 20 years. That the eviction orders thus violate Article 50 of the Constitution, which guarantees a fair hearing and just outcome.
23. On behalf of the Respondent, it was submitted that there is no unjust enrichment; the appellant failed to prove payment. That the Respondent cannot benefit from unlawful occupation. That the appellant is a trespasser and needs to be evicted.
24. The trial court found that the appellant’s occupation was unlawful. The court granted an eviction order as prayed by the Respondent. This court has already found that the purported purchase of the suit land and the entry onto the land were unlawful actions. Hence the order of eviction was properly granted. Both the estate of the deceased and the proprietary rights of the current registered owner are entitled to the protection guaranteed by Article 40 of the Constitution.
The Respondent was not the seller of the suit land. I find that this ground also fails.
For the foregoing reasons, I find that the appeal lacks merit and I hereby dismiss it. The judgment of the trial court is upheld. Each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang - Court Assistant.
Mondia h/b for Kiveu for the Appellant
Amasakha for the Respondent.
elcla no. e005 of 20251
1. Vide the Memorandum of Appeal dated 20 th February 2025, PATRICK AGUSIOMA preferred the present appeal having been aggrieved by the judgment and decree in Hamisi MCEL No. 23 of 2023 delivered on 23 rd January 2025.
2. The grounds of the appeal are that: -
i. The learned trial Magistrate grossly erred in the evaluation of the evidence before him.
ii. The learned trial Magistrate grossly erred in not appreciating the principle of constructive estoppel as it applied in the circumstances of this case.
iii. The learned trial Magistrate grossly erred in failing to find for the appellant on adverse possession.
iv. The learned trial Magistrate erred in not applying the principles of equity.
v. The final orders constitute unjust enrichment on the part of the Respondent
3. The appellant sought orders that the appellant’s counter-claim be allowed, and the Respondent be condemned to pay costs both of the lower court and for the appeal.
4. A brief background of the appeal is that the appellant was sued by the Respondent vide the plaint dated 23 rd October 2023 in HAMISI PMC ELC CASE NO. 23 OF 2023(the suit). The subject matter of the suit was a parcel of land known as KAKAMEGA/CHAMAKANGA/88 herein called the suit land.
5. The Respondent’s case in the suit was that she was the current absolute proprietor of the suit land, which she obtained on 30/5/2023 pursuant to Succession to the estate of Ezekiel Mangi Muriga, deceased, who was her father and previous registered owner of the suit land. That she desired to take exclusive possession of the land, but the appellant was occupying a portion thereof, which he had refused, neglected, or failed to voluntarily vacate. She therefore sought an order of immediate eviction of the appellant from the suit land and demolition of any illegal structures erected on the said property. She also sought costs of the suit.
6. In response to the Respondent’s claim, the appellant had filed the Defence and Counterclaim dated 25 th January 2024. He denied the Respondent’s claim and averred that he bought part of the suit land measuring 1 acre from one Gurera Mukanzi Mange, the wife of the registered owner who was then deceased, took possession of the sold portion in 2004 and built a homestead thereon in 2005, and that he has been in actual, exclusive use and possession thereof since then to date, a period of almost 20 years. That he had built 2 semi-permanent houses, toilets, and has been farming thereon. That the Respondent undertook succession to the estate of the deceased secretly without informing him, yet he was a liability in the estate. The appellant therefore sought, vide the counterclaim, that the suit be dismissed, a declaration be made that he had acquired 1 acre of the suit land through adverse possession, an order for sub-division of the suit land and transfer of the 1 acre thereof to him, and costs of the suit and of the counterclaim.
7. The Respondent’s reply to defence and defence to counterclaim dated 5 th February 2024 was that the appellant was a trespasser on the suit land with no rights of proprietorship.
8. The suit was heard before the trial court which, vide its judgment, now appealed against, found that the Respondent had proved her case against the appellant on a balance of probabilities. The trial court entered judgment in favour of the appellant for an eviction order, costs and interest.
Submissions
9. Pursuant to directions given on 10/3/2026, the appeal was heard by way of written submissions. Written submissions dated 26 th May 2026 were filed on behalf of the Respondent by M. Kiveu, Advocate, while written submissions dated 19 th March 2026 were filed on behalf of the Respondent by Amasakha & Company Advocates.
Analysis and determination
10. This being a first appeal is a retrial of the suit wherein the court has a duty to re-examine and re-analyze the evidence placed before the trial court, as held in Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first ground of appeal faults the trial court for the manner in which it evaluated the evidence before it.
11. It was submitted on behalf of the appellant that the Respondent alleged trespass but failed to discharge the burden of proof. That the Respondent failed to prove trespass. That the evidence showed that the appellant entered the land with the consent of the seller and the Respondent’s knowledge.
On behalf of the Respondent, it was submitted that the trial court properly evaluated the evidence and correctly found that there was no proof of payment, no proof of adverse possession, and that there is no basis for appellate interference.
The Respondent’s suit was based on the tort of trespass while the appellant’s counter-claim was based on purchase and occupation leading to adverse possession.
12. The evidence placed before the trial court by the parties comprised the testimony of the Respondent and the exhibits she produced, and the testimony of the appellant and the exhibits he produced. The Respondent, who testified as PW1, adopted the contents of her witness statement dated 23/10/2023 as her evidence. The record shows that she had rehashed the contents of the plaint in the witness statement.
13. On cross-examination, she stated that the copy of the sale agreement that the appellant possessed had her signature. That the appellant built a house on the land and was in occupation. That the land belongs to her father. That her mother had no authority/capacity to sell the land. The Respondent produced 2 documents as exhibits; namely, the title deed for the suit land and the Certificate of Confirmation of Grant.
14. The appellant similarly adopted the contents of his witness statement as his evidence in chief. He had stated in his witness statement that he bought part of the suit land measuring 1 acre at Kshs 200,000/= in the year 2004 from Gurera Mukangi Mange. That the Respondent was one of the witnesses to the sale. That he took possession of the land in the year 2004 and developed the land. The appellant produced a copy of the certificate of death for Ezekiel Manga and the land Sale agreement as exhibits.
15. The record shows that the trial court in the judgment considered the evidence before it, relied on Section 26 of the Land Registration Act and case law, and found that as the widow of the deceased registered owner had not taken out a grant to the estate of the deceased, the purported sale was therefore not only illegal but criminal. That the appellant’s occupation of the suit land was on the basis of an unlawful sale and could not result in adverse possession.
16. I have considered the pleadings filed, evidence placed before the trial court and the submissions made herein. It is clear from the evidence that the suit land is registered in the name of the Respondent upon transmission from the deceased registered owner and that the appellant is occupying part of the land. The Respondent’s case is that the appellant’s occupation amounts to trespass. The appellant’s explanation for his presence on the suit land is that he bought it from the widow of the deceased and that he has been on the land for more than 12 years; hence is entitled to the occupied portion by adverse possession.
17. The appellant entered the suit land when the owner was deceased, and no succession had been undertaken in respect of the deceased’s estate. Under the provisions of section 45 of the Law of Succession Act, both the sale transaction and entry onto and occupation of the suit land amount to acts of intermeddling with the estate of the deceased. The appellant had no transaction with the deceased. He was not a liability in the estate of the deceased.
I find that the trial court did not err in its apprehension and analysis of the evidence placed before it.
The next ground of appeal is that the trial court erred in not appreciating the principle of constructive estoppel as it applied in the circumstances of this case.
18. It was submitted on behalf of the appellant that the trial court overlooked the doctrine of proprietary estoppel, which prevents a landowner from unconscionably denying other beneficial interests. Counsel submitted that the doctrine is now anchored in Article 10(2) (b) of the Constitution, which binds courts to apply the national value of equity. Counsel relied on the case of Macharia Mwangi Maina & 87 others -vs- Davidson Mwangi Kagiri, Civil Appeal No, 26 & 27 of 2024, where Counsel submitted that the court affirmed that constructive trust and proprietary estoppel apply where justice and good conscience demand.
19. On behalf of the Respondent, it was submitted that equity follows the law. That equity cannot override statutory provisions and lack of proof.
20. I have considered the evidence placed before the Court. The appellant produced a land sale agreement. It was between him and the mother of the Respondent and not the Respondent. His case was that the Respondent signed the agreement as a witness. This, however, did not make the Respondent liable under the agreement. There is no evidence that the purchase price was paid to the Respondent or that the Respondent was to deliver the land to the appellant. A constructive trust would apply between the parties to the agreement as was the case in the authority cited by the appellant. I find that ground 2 of the appeal has not been proved.
The third ground of appeal faults the trial court for failing to find in favour of the appellant on adverse possession.
21. Having found that the entry onto the suit land was after the death of the deceased registered owner and during the period when his estate had not been succeeded, adverse possession could not arise. The trial court correctly found so. Ground 3 of the appeal equally fails.
22. The last ground of appeal is that the final orders of the court constituted unjust enrichment on the part of the Respondent.
It was submitted on behalf of the appellant that the eviction order unjustly enriches the Respondent. That unjust enrichment occurs when a party receives a benefit at another’s expense, and it would be unjust for them to retain it. That the elements are that the Respondent has been enriched, that the enrichment is at the expense of the appellant, and that it is unjust to allow her to retain the benefit. That the appellant has lost both his purchase money and the land he developed over 20 years. That the eviction orders thus violate Article 50 of the Constitution, which guarantees a fair hearing and just outcome.
23. On behalf of the Respondent, it was submitted that there is no unjust enrichment; the appellant failed to prove payment. That the Respondent cannot benefit from unlawful occupation. That the appellant is a trespasser and needs to be evicted.
24. The trial court found that the appellant’s occupation was unlawful. The court granted an eviction order as prayed by the Respondent. This court has already found that the purported purchase of the suit land and the entry onto the land were unlawful actions. Hence the order of eviction was properly granted. Both the estate of the deceased and the proprietary rights of the current registered owner are entitled to the protection guaranteed by Article 40 of the Constitution.
The Respondent was not the seller of the suit land. I find that this ground also fails.
For the foregoing reasons, I find that the appeal lacks merit and I hereby dismiss it. The judgment of the trial court is upheld. Each party shall bear its own costs of the appeal.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang - Court Assistant.
Mondia h/b for Kiveu for the Appellant
Amasakha for the Respondent.
elcla no. e005 of 20251