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Court of AppealDismissedNot stated in the judgment· [2018] KECA 573 (KLR)

Kitilit v Kibet (Civil Appeal 51 of 2015) [2018] KECA 573 (KLR)

Court of Appeal of Kenya
17 May 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
4,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land buyers who paid in full and took possession can enforce land sales even without Land Control Board consent.

What this practically means

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Executive summary

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This is a first appeal from the Environment and Land Court (Obaga, J.), which had dismissed the appellant vendor's suit and allowed the respondent purchaser's counter-claim for specific performance of an agreement for the sale of two acres out of Kaplamai/Sirende Block 1/Kiplongon/60, entered into in August 2008 at a consideration of Shs. 300,000/=. The appeal, confined to questions of law, challenged the enforceability of the agreement notwithstanding the absence of Land Control Board consent under Section 6 of the Land Control Act. The Court of Appeal confronted the conflict between its own decisions in Macharia Mwangi Maina (which upheld constructive trust in such circumstances) and David Sironga ole Tukai (which rejected the importation of equity into the Land Control Act). The Court resolved the conflict in favour of Macharia Mwangi Maina. It held that Section 6(2) of the Act targets express trusts created by instrument, not constructive trusts arising by operation of law; that trusts are overriding interests under the Land Registration Act; that a controlled transaction becomes void only when consent is not sought or is finally refused; and that Article 10(2)(b) of the Constitution elevates equity to a national value requiring the doctrines of constructive trust and proprietary estoppel to be applied to land subject to the Land Control Act, subject to the circumstances of each case. On the facts, the vendor had received the full purchase price by 2010, put the purchaser in possession, and only registered himself and sued for eviction afterwards; he was therefore a constructive trustee. The appeal was dismissed with costs to the respondent. The judgment binds subordinate courts on the applicability of equity to void controlled transactions.

Key legal issues

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01

Applicability of constructive trust and proprietary estoppel to transactions void under the Land Control Act

Holding

The doctrines of constructive trust and proprietary estoppel apply to and supersede the Land Control Act where a transaction relating to an interest in land is void for lack of Land Control Board consent, subject to the circumstances of each case.

Reasoning

Sections 3(3) of the Law of Contract Act and 38(2) of the Land Act expressly preserve constructive trusts despite writing requirements; trusts are overriding interests under Section 28 of the Land Registration Act and Section 25(2) preserves trustees' obligations. Article 10(2)(b) of the Constitution elevates equity to a national value binding courts, and the Sixth Schedule transitional clause requires the Land Control Act to be construed to conform with the Constitution. The Court aligned itself with Macharia Mwangi Maina and departed from David Sironga ole Tukai.

p. 13
02

Meaning of Section 6(2) of the Land Control Act

Holding

The prohibition on declarations of trust of agricultural land targets express trusts created by instrument, not constructive trusts arising by operation of law or by court order.

Reasoning

Following Madan JA in Public Trustee v. Wanduru Ndegwa, the Land Control Act has no application where title is claimed by operation of law such as adverse possession. Equity is law, and Section 6(2) does not prohibit a court exercising equitable jurisdiction from declaring that a party holds land in a fiduciary capacity. A court's decision is final and binding subject to appeal and cannot require Land Control Board consent to become valid.

p. 12
03

Whether purchaser's possession in furtherance of a void transaction is illegal and cannot be an overriding interest

Holding

Possession is only illegal under Section 22 of the Land Control Act if it is in furtherance of the avoided transaction; a person put in possession by the proprietor and claiming an equitable interest is not in illegal occupation pending determination of the equitable rights by a court.

Reasoning

By Section 25(2) of the Land Registration Act registration does not relieve a proprietor of trustee obligations, and by Section 28 trusts are overriding interests. Section 161(2) of the Land Act requires all land laws to be construed in conformity with the Land Act. Hence a purchaser in possession with the vendor's knowledge holds an equitable interest capable of protection.

p. 12
04

Remedies where equitable doctrines apply to a void controlled transaction

Holding

Where the equitable doctrines apply, the court in its discretion may award damages and, where damages are inadequate, may grant specific performance.

Reasoning

The Court held that constructive trust and proprietary estoppel, which apply to void oral contracts by analogy apply equally to contracts void for lack of Land Control Board consent, especially where the party in breach has unreasonably delayed. The remedy is discretionary and fact-dependent; on the facts, the vendor received the full price, put the purchaser in possession, and only sought eviction after registering himself, so specific performance was appropriate.

p. 13

Legal principles established

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  • Lower courts are bound that the equitable doctrines of constructive trust and proprietary estoppel are applicable to, and enforceable in respect of, land subject to the Land Control Act, notwithstanding the absence of Land Control Board consent, though subject to the circumstances of the particular case.
  • A controlled transaction for the sale of agricultural land is not void from inception; it becomes void only when no application for consent is made or consent is refused and any appeal is dismissed.
  • Section 6(2) of the Land Control Act, referring to a declaration of trust of agricultural land, applies to express trusts created by deed or instrument, not to constructive trusts arising by operation of law.
  • A vendor who has received the full purchase price and put the purchaser in possession holds the sold portion as constructive trustee, and it is inequitable to allow him to retain it even where the Land Control Board consent was never obtained.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent

Authorities

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Legislation

  • Land Control ActPreamble; Section 6(1); Section 6(2); Section 6(3)(b); Section 7; Section 8(1); Section 8(2); Section 9(1); Section 9(2); Section 11(1); Section 13(1); Section 22; Section 24
  • Constitution of Kenya, 2010Article 60(1); Article 65; Article 66(1); Article 67(1); Article 68; Article 10(1)(b); Article 10(2)(b); Article 159(2)(e); Sixth Schedule, clause 7(1)
  • Land Registration ActSection 25; Section 25(2); Section 28; Section 36; Section 66
  • Land ActSection 38(1); Section 38(2); Sections 39, 40 and 41; Section 42; Section 42(3); Section 161(2); Section 159
  • Land Laws (Amendment) Act No. 28 of 2016Section 55
  • Law of Contract Act, Chapter 23Section 3; Section 3(3)
  • Community Land Act, No. 27 of 2016Not specified
  • Judicature ActSection 3
  • Registered Land Act (repealed)Section 126; proviso to Section 28
  • English Law of Property (Miscellaneous Provisions) Act, 1989Section 2(1); Section 2(5)
  • Auctioneers Act (Cap 526)Not specified

Cases cited (4)

  • Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri
    [2014] eKLR
  • David Ole Tukai v. Francis Arap Muge & 2 Others (David Sironga ole Tukai)
    [2014] eKLR
  • Yaxley v. Gotts
    [2000] Ch. 162
  • Public Trustee v. Wanduru Ndegwa
    [1984] eKLR
On appeal from
Environment and Land Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Environment and Land Court (appeal on points of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kitilit v Kibet (Civil Appeal 51 of 2015) [2018] KECA 573 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/573/eng@2018-05-17

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