Awange & another v Oyolla & another (Civil Appeal E454 of 2024) [2026] KECA 377 (KLR) (27 February 2026) (Judgment)
- Court
- Court of Appeal
- Case number
- 377
- Citation
- [2026] KECA 377 (KLR)
- Decided
- 27 February 2026
The appeal is allowed; the declarations of trust and all rectification orders are set aside; ownership of L.R. No. 209/14990/16 remains vested in the appellant; the matter is remitted to the ELC before a Judge other than Oguttu Mboya, J. solely for the purpose of determining whether the 1st respondent strictly proved that he advanced identiable monetary sums to the appellant toward acquisition of the suit property and, if so, the net amount recoverable in restitution, if any.
Facts
The suit property is a developed parcel of land whereon stands an ongoing development of a twelve-storey apartment block. The parties in the appeal are the registered owner of the suit property, her corporate vehicle, and a third-party investor that undertook construction on the suit property.
Issues
- Whether the 1st respondent established a constructive or resulting trust.
- Whether the ELC erred in granting reliefs not pleaded or supported by evidence.
- Whether the procedural aws raised by the Appellants vitiate the decision.
- Whether the 2nd respondent is a bona de purchaser for value.
- Whether the judgment is capable of execution.
- Whether the appeal is merited.
- Who should bear the costs of the appeal?
Reasoning
The Court found that the 1st respondent did not establish a constructive or resulting trust, and the ELC erred in granting reliefs not pleaded or supported by evidence. The procedural flaws raised by the Appellants were not sufficient to vitiate the decision. The 2nd respondent is not a bona de purchaser for value, and the judgment is not capable of execution.
Outcome
The appeal is allowed.
Orders
- The declarations of trust and all rectification orders are set aside.
- Ownership of L.R. No. 209/14990/16 remains vested in the appellant.
- The matter is remitted to the ELC before a Judge other than Oguttu Mboya, J. solely for the purpose of determining whether the 1st respondent strictly proved that he advanced identiable monetary sums to the appellant toward acquisition of the suit property and, if so, the net amount recoverable in restitution, if any.
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