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Court of AppealDismissedCivil Appeal No. 2 of 2018· [2021] KECA 464 (KLR)

Anne Jepkemboi Ngeny v Joseph Tireito & 1 other

Court of Appeal
9 July 2021
4,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a 1971 land sale despite no written contract, confirming that possession counts and titles grabbed during a court case are invalid.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Nambuye, Karanja and Okwengu, JJ.A.) dismissed this first appeal against the judgment of the Environment & Land Court at Eldoret (S. Munyao, J.) delivered on 26th February 2014 in ELC No. 441 of 2012, affirming the 1st respondent's entitlement to 26.5 acres. The 1st respondent had purchased a quarter undivided share of LR No. 779/359 from the 2nd respondent in 1971 and taken possession; during the pendency of the suit, and in defiance of an injunction, the appellant and the 2nd respondent sub-divided the land and obtained titles in their names. The Court upheld the trial judge's findings that a sale agreement existed and was saved even if unwritten by the part-performance proviso to section 3(3) of the Law of Contract Act as it stood before June 2003; that Land Control Board consent was authentic on the register and consent letter; that the 1st respondent was entitled to 26.5 acres rather than 24; and that the suit, filed in 1999, was not time-barred because the cause of action arose upon the 1999 trespass, not the 1971 sale. The Court held that the appellant's alienation and registration during pendency breached the doctrine of lis pendens and amounted to contempt of court, justifying cancellation of the new titles and retransfer to the 1st respondent. The Court declined to strike out the appeal on incompetence grounds, preferring to determine it on merit. The appeal was dismissed with costs to the 1st respondent. This judgment binds the Environment and Land Court and other subordinate courts on the accrual of cause of action in land recovery claims and on the consequences of alienating property during pending litigation.

Key legal issues

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01

Whether the land could be sold without a written contract

Holding

Even absent a written sale agreement, the pre-2003 proviso to section 3(3) of the Law of Contract Act saves a transaction where the purchaser took possession in part performance; the 2nd respondent also admitted in his defence that an agreement existed.

Reasoning

The Court adopted Peter Mbiri Michuki v Samuel Mugo Michuki, setting out section 3(3) of the Law of Contract Act and its proviso saving contracts in part performance. The 1st respondent was found to have been in occupation from 1971 throughout the proceedings, satisfying the proviso. Further, the 2nd respondent's statement of defence admitted an agreement existed, albeit for 24 acres, so the existence of an agreement was not in doubt.

p. 4
02

Whether the transaction was valid without a Land Control Board consent to transfer

Holding

The Land Control Board register and letter of consent on record established that consent was issued and the transaction approved; absent contrary evidence, the documents were genuine and authentic.

Reasoning

The trial judge had scrutinised the register of the Land Control Board and the letter of consent, which showed an entry dated 4th June 1971 recording the sale of a 1/4 undivided share and that the transaction was approved. The 2nd respondent's denial of attendance was contradicted by the register. On appeal, the Court found no evidence adduced to controvert the authenticity of the consent and declined to disturb the finding.

p. 5
03

Whether the 1st respondent was entitled to 26.5 acres or 24 acres

Holding

The 1st respondent was entitled to 26.5 acres; simple arithmetic on the 106-acre parcel (53 acres to one partner, the remainder divided equally) yielded 26.5 acres, and the source of the appellant's extra 2.5 acres was the 1st respondent's land.

Reasoning

The trial judge reasoned that of the 106 acres, 53 went to one partner, leaving 53 to be divided equally between the 2nd respondent and another, yielding 26.5 acres each. The judge also noted that if the 2nd respondent only had 24 acres, he could not explain where the extra land with the houses, which he sold to the appellant, came from. The only logical conclusion was that the extra land was the 2.5 acres claimed by the plaintiff.

p. 5
04

Whether limitation of time applied to the 1st respondent's suit

Holding

The cause of action arose in May 1999 when the appellant and 2nd respondent trespassed and sought to reclaim 2.5 acres, not in 1971; the suit filed in 1999 was well within the 12-year limitation period.

Reasoning

Relying on definitions of cause of action from Read v Brown, Letang v Cooper and Drummond Jackson v Britain Medical Association as adopted in Attorney General v Andrew Maina Githinji, the Court held that a cause of action is the fact situation entitling one to a remedy. The plaint averred uninterrupted possession from 1971 until May 1999 when the trespass occurred; therefore time began to run in 1999 and the suit, filed the same year, was within time.

p. 6
05

Whether titles obtained during the pendency of the suit could stand

Holding

Alienation and registration of the suit property during pendency of litigation breached the doctrine of lis pendens and amounted to contempt of court; the trial court was entitled to cancel the titles and order retransfer.

Reasoning

Despite an order of 14th February 2003 restraining the appellant and 2nd respondent from sub-dividing or dealing with the suit property, they transferred the properties into their names during the suit. The Court invoked Naftali Ruthi Kinyua v Patrick Thuita Gachure, Bellamy v Sabine and Mawji v US International University on lis pendens, holding that such alienation was null and could not defeat the plaintiff's claim, and that the judge properly exercised his discretion in cancelling the titles.

p. 5

Legal principles established

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  • Section 3(3) of the Law of Contract Act, in its pre-2003 form, does not defeat a contract for disposition of an interest in land where an intending purchaser has taken possession in part performance.
  • A party who alienates, sub-divides or registers property in their name during the pendency of litigation is in breach of the doctrine of lis pendens, which overrides registration under section 23 of the Registered Title Act.
  • A claim for recovery of land accrues when the plaintiff's possession is interrupted, not when the contract of purchase was made; the limitation period runs from the breach or trespass.

Court orders

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  1. 1.Appeal dismissed with costs to the 1st respondent
  2. 2.Judgment of the Environment & Land Court delivered on 26th February 2014 affirmed
On appeal from
Environment & Land Court at Eldoret
E.L.C. No. 441 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment of the Environment & Land Court (Constitution of Kenya, Article 164; Court of Appeal Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Anne Jepkemboi Ngeny v Joseph Tireito & 1 other", Case Analysis (2021). Civil Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/464/eng@2021-07-09

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