Thomas Kimutai Biwott & 1 other v Joseph Ndalaya Muyesu
The bottom line
#Kenya's Court of Appeal confirmed that missing Land Control Board consent does not kill an oral land deal—courts can enforce it through equity.
What this practically means
#Executive summary
#Key legal issues
#Nature of the transaction and limitation
The transaction was a land transaction governed by the twelve-year limitation period in Section 7 of the Limitation of Actions Act; the suit, filed within twelve years of the 1997 agreement, was not time barred
The evidence showed the parties agreed to exchange the respondent's parcel Uasin Gishu/Kahungura/278 for the suit property owned by the 2nd appellant. Because the transaction was based on land, the strictures applicable are those of Section 7 of the Limitation of Actions Act, providing that no action to recover land may be brought after twelve years from accrual of the right of action. The suit was filed within twelve years.
Requirement of writing under Section 3(3) of the Law of Contract Act
The 1997 oral agreement was not caught by the writing requirement, which only came into effect on 4th June 2002 by amendment, and the law cannot apply retrospectively
The appellants argued the agreement was void for lack of writing under Section 3(3) of the Law of Contract Act. The Court found the transaction was entered into in 1997, while the writing requirement was introduced by the Statute Laws (Amendment) Act which came into effect on 4th June 2002. The requirement therefore did not apply to this transaction and nothing turned on the submission.
Re-evaluation of evidence by the first appellate court
The first appellate court properly considered the Land Control Board consent application showing the exchange was for the entire suit property; the parties never acted on the alleged 1¾-acre agreement
The Court held that its jurisdiction on second appeal extends to whether the first appellate court properly discharged its duty, since failure to re-evaluate evidence is a legal point. On the facts, the first appellate court relied on the Land Control Board consent application, which was for exchange of the whole parcel. The agreement alleged to have limited the exchange to 1¾ acres was never acted upon; what was acted upon was the transfer of the respondent's property to the 1st appellant.
Effect of absence of Land Control Board consent
Lack of Land Control Board consent does not render the agreement void; equitable principles, particularly constructive trust, may be given effect
It was conceded there was no consent to transfer the suit property to the respondent. However, following this Court's decision in Willy Kimutai Kitilit v Michael Kibet, the absence of consent does not preclude the court from enforcing the agreement through equitable principles. The respondent had transferred his property and taken no corresponding benefit, so rendering the agreement void would be unjust.
Specific performance
Specific performance was properly granted as there was evidence of a valid oral agreement and it was just and equitable to enforce it
Applying the principle in Gurdev Singh Birdi that specific performance rests on whether it is just and equitable in all the circumstances, the Court found a valid oral agreement existed, that the lack of Land Control Board consent could not void it, and that the first appellate court reached the correct conclusion in entering judgment for the respondent. There was therefore no reason to disturb that judgment.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law and does not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- Lack of Land Control Board consent does not render an agreement for exchange or transfer of agricultural land void; the court may give effect to equitable principles including constructive trust
- A transaction of exchange of land is a land transaction, and claims to recover land under it are governed by the twelve-year limitation period in Section 7 of the Limitation of Actions Act
- The requirement in Section 3(3) of the Law of Contract Act that land transactions be in writing does not apply retrospectively to transactions entered into before the amendment came into effect on 4th June 2002
- Specific performance is granted where, in all the circumstances of the particular case, it is just and equitable so to do
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Environment and Land Court
- ELC Appeal No 8 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act, confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Portsmouth Holdings Limited v Kenya Railways Corporation (Environment & Land Case 7 of 2021) [2025] KEELC 4909 (KLR)[2025] KEELC 4909 (KLR)25 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Thomas Kimutai Biwott & 1 other v Joseph Ndalaya Muyesu", Case Analysis (2021). Civil Appeal No 112 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/436/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.