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Court of AppealPartially AllowedCivil Appeal (number not stated in judgment)· [1994] KECA 97 (KLR)

Isaiah Mathenge & another v Alfred Rugendo Kimotho (Civil Appeal 190 of 1991) [1994] KECA 97 (KLR)

Court of Appeal of Kenya
28 November 1994
JGJ.E. GicheruRKR.O. KwachROR.S.C. Omolo
4,218 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Nine co-proprietors in common of Title No Mombasa/Block 17/710 charged the land to Pan Africa Insurance Co Ltd and, facing a statutory sale, agreed to sell the property to the respondent, Alfred Rugendo Kimotho, under an agreement dated 4th June 1981 prepared by K Mwaura & Co Advocates. Two proprietors, Isaiah Mathenge and Benson Ombuna, refused to sign. The respondent sued for specific performance, and Mwera J ordered specific performance against the first appellant only, reasoning that the second appellant had sold his share to the first. The Court of Appeal (Kwach, Omolo and Gicheru JJ A) allowed the appeal. Kwach JA held that the first appellant's letters contained no commitment to sell and could not constitute a memorandum or note under section 3(3) of the Law of Contract Act, and that the second appellant, who signed nothing, could not have his undivided share disposed of without written consent under section 103(2) of the Registered Land Act. He further held that the advocates' authority was limited to finding a purchaser and did not extend to executing a transfer absent a power of attorney, and that agency had not been pleaded. Omolo JA respectfully disagreed on the sufficiency of the memorandum as regards the first appellant but agreed the appeal must succeed on the second appellant's case, the whole agreement falling away. The Court set aside the judgment and decree of Mwera J, dismissed the respondent's suit with costs, awarded the appellants the costs of the appeal, and ordered the Land Registrar, Mombasa, to cancel any registration of the respondent and reinstate the original proprietors. The judgment binds subordinate courts on the writing requirement in land contracts and the prohibition of estoppel against a statute.

Key legal issues

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01

Compliance with section 3(3) of the Law of Contract Act as regards the second appellant

Holding

The appeal of the second appellant succeeds because there was no agreement, memorandum or note signed by him or anyone on his behalf agreeing to sell his share, and his undivided share could not be sold to a third party without his written consent.

Reasoning

The second appellant never signed the agreement for sale, his name did not even appear in it, and he wrote no letter capable of constituting a memorandum or note. Although evidence suggested he had sold his share to the first appellant, no transfer was effected and he remained registered. Under section 103(2) of the Registered Land Act his interest required his written consent to be disposed of to a third party, and none was obtained.

p. 4
02

Whether the first appellant's letters constituted a memorandum or note under section 3(3)

Holding

Kwach JA held that the two letters contained no commitment to sell to the respondent and could not constitute a memorandum or note signed by the first appellant.

Reasoning

The letter to Koinange merely stated that the first appellant had been shown a sale agreement and would sign only if paid his share of the proceeds; it contained no commitment to sell and was not addressed to the respondent. The earlier letter to co-proprietors merely sought a buyer. On this basis the first appellant's appeal also succeeded. Omolo JA, however, respectfully disagreed with this analysis, finding the letters read together sufficient as a memorandum as regards the first appellant, though the appeal still succeeded on the second appellant's case.

p. 2
03

Scope of the advocates' authority as agents for the sale of land

Holding

The advocates had authority only to find a purchaser, not to bind the proprietors by executing a sale or transfer; the trial judge erred in invoking agency on this basis, and the point had not been pleaded.

Reasoning

Because the subject matter was real estate, the agents' authority was limited to locating a buyer. Without a power of attorney they could not execute a transfer on behalf of the clients; in effect they were acting as estate agents. The trial judge therefore wrongly upheld the agreement against the appellants on agency grounds.

p. 3

Legal principles established

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  • A contract for the disposition of an interest in land must, under section 3(3) of the Law of Contract Act, be in writing or evidenced by a memorandum or note signed by the party to be charged or a person authorised by him; execution of a legal document is a matter of fact and cannot be presumed or established by estoppel.
  • There can be no estoppel against an Act of Parliament.
  • A proprietor in common cannot deal with his undivided share in favour of a third party without the written consent of the remaining proprietors under section 103(2) of the Registered Land Act.
  • An agent instructed to find a purchaser of real estate has no authority to execute a transfer on the client's behalf unless armed with a power of attorney.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of Mwera J set aside
  3. 3.Substitution of an order dismissing the respondent's suit with costs
  4. 4.Appellants awarded costs of the appeal
  5. 5.If the suit land has been registered in the name of the respondent in execution of the decree, the Land Registrar, Mombasa, to cancel that registration and reinstate as proprietors all the persons named in the land certificate dated 27th January 1971
On appeal from
High Court of Kenya
not stated
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaiah Mathenge & another v Alfred Rugendo Kimotho (Civil Appeal 190 of 1991) [1994] KECA 97 (KLR)", Case Analysis (1994). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/97/eng@1994-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.