Arumba v Mbega & another (Civil Appeal 114 of 1986) [1988] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 1966 land sale survived the seller's death and lost documents, splitting the plot between buyer and heirs.
What this practically means
#Executive summary
#Key legal issues
#Proof of the 1966 contract for the disposition of an interest in land without the original writing
The contract was proved either by admissible secondary evidence of the lost writing or by part performance through possession, development and partial payment.
Section 3(3) of the Contract Act requires writing, but its proviso excepts suits where the purchaser has taken possession in part performance. The Evidence Act permits secondary evidence, including oral accounts, where the original was destroyed. The Appellant's evidence of the fire and the agreement was uncontradicted, and his long possession and development of the plot could not be explained by the Respondents.
Whether absence of Land Control Board consent voided the agreement
No Land Control Board consent was necessary while the Settlement Fund Trustees held the land, since section 218(5) of the Constitution exempted transactions to which the Trustees were a party.
The trial judge relied on pre-1967 land control provisions but overlooked section 218(5), as amended by Act No. 14 of 1965, which exempted Settlement Fund Trustees' transactions. An agreement to sell settlement land is inchoate without the Trustees' consent, making them parties to it; the Trustees' consent suffices without recourse to a Land Control Board.
Whether a resulting trust arose in favour of the Appellant
The majority (Platt JA, with Gachuhi JA) held the heirs hold the land on a resulting trust as tenants in common with the Appellant, apportioning shares by contribution and development.
Applying the principle that where several persons purchase property in the name of one, the property is deemed held on a resulting trust, the Appellant's payment of the transfer fee, his development expenditure and the Trustees' acquiescence gave him an equitable share. It would be unconscionable, given the Respondents' delay and contempt, to evict him.
Whether the proper remedy was a declaration and specific performance rather than a trust and partition
Apaloo JA dissented: upon a binding contract of sale the vendor held as trustee for the purchaser, entitling the appellant to a declaration in terms of the plaint and conveyance on payment of the outstanding loan, not to a partition.
Relying on Lysat v Edwards and Fry on Specific Performance, a vendor who dies before completion may be compelled through his heirs; specific performance cannot be ordered piecemeal. The Respondents, having no legal or beneficial title and having acted in contempt, could not claim an equity to shares.
Adverse possession as a defence
The issue was precluded by the amendment backdated under section 35 of the Limitation of Actions Act to the date of the writ, by which time 12 years had not elapsed.
The 1984 amendment to the defence and counterclaim, backdated to 30th September 1977, prevented a finding of adverse possession because 12 years had not run by that date. The Appellant did not challenge the amendment in the appeal, so the point could not be pursued.
Legal principles established
#- On a first appeal, the appellate court must review and weigh the evidence itself while bearing in mind the trial court's advantage of seeing and hearing the witnesses.
- Where an original document has been destroyed or lost, secondary evidence of its contents, including oral accounts, is admissible.
- Transactions to which the Settlement Fund Trustees are a party are excluded from the constitutional land-control consent requirement under section 218(5) as amended.
- A valid contract for the sale of land makes the vendor a trustee in equity for the purchaser, and the contract may be enforced against the vendor's personal representatives and heirs even after death.
Court orders
#- 1.A declaration that the 1st and 2nd Respondents and the Appellant hold the land on a resulting trust as tenants in common
- 2.When the land comes to be divided it shall be divided as set out in the judgment
- 3.The Respondents shall execute such necessary documents of transfer in favour of the Plaintiff as may be necessary
- 4.The counter-claim is dismissed
- 5.The land be divided equally between the parties taking into account portions sold by the parties (Gachuhi JA)
- 6.The appellant shall pay the balance of any amount due to the Settlement Fund Trustee (Gachuhi JA)
- 7.The Appellant to have the costs of the appeal; costs of the suit in the High Court to be borne by each party (Platt JA); alternatively each party to bear its own costs of the appeal and of the High Court (Gachuhi JA)
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arumba v Mbega & another (Civil Appeal 114 of 1986) [1988] KECA 91 (KLR)", Case Analysis (1988). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.