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Court of AppealDismissedCivil Appeal 69 of 2019· [2022] KECA 395 (KLR)

Yawa & another (Suing as the legal representative of the estate of Makupe Yawa Mwalungo (Deceased)) v Baya & another

Court of Appeal
4 March 2022
SKS. G. KairuPNP. NyamweyaJLJ. W. Lessit
6,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that buyers who pay in full and occupy land for decades own it, even without a title transfer.

What this practically means

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Executive summary

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The appellants, widow and son and administrators of Makupe Yawa Mwalungo (deceased), sued the respondents seeking a declaration that a 1988 agreement for sale of 3 acres of plot Kilifi/Mtwapa/1944 was not binding for non-completion, vacant possession or eviction, and an injunction. The respondents counterclaimed that they had purchased and fully paid for 7 acres, taken possession in 1988, and were entitled to transfer. The Environment and Land Court (Omollo, J.) dismissed the suit and allowed the counterclaim, holding the appellants held title in trust for the respondents in respect of the 7 acres, and ordering execution of subdivision and transfer documents. On appeal, the Court of Appeal (Kairu, Nyamweya and Lessit, JJA) reappraised the evidence as a first appellate court. It held that although limitation was not pleaded, it was properly decided since it was canvassed in submissions; the contract claim lapsed six years after the land control board consent of 30 September 1988 and the land claim after twelve years, both during the vendor's lifetime. It found the 1st appellant's testimony of little probative value since the transactions predated her marriage, and accepted the evidence of the 1st respondent, the deceased's first wife and an independent witness that the full purchase price was paid. Endorsing Kitilit, Segei and Yaxley v Gotts, the Court upheld the constructive trust arising from full payment, delivery of possession and decades of undisturbed occupation. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Limitation of the appellants' claim

Holding

The claim based on alleged non-payment of the balance of the purchase price was time barred, six years having run from the land control board consent of 30th September 1988, and no claim to recover the land was brought within twelve years

Reasoning

The agreements were silent on completion; completion was tied to land control board consent obtained on 30th September 1988, so the contract claim lapsed by 29th September 1994 and the land claim after twelve years, all during the vendor's lifetime with no demand or extension of time. Although limitation was not pleaded, it was canvassed in submissions and could be decided under the Odd Jobs principle.

p. 8
02

Whether the balance of the purchase price was paid

Holding

The appellants failed to prove on a balance of probabilities that the balance was unpaid; the respondents proved it was paid during the vendor's lifetime

Reasoning

The only evidence for the appellants was the 1st appellant's testimony, which had little probative value as the transactions predated her marriage to the deceased and she was absent when payments were made. Against this stood the evidence of the 1st respondent, the deceased's first wife and an independent witness, all confirming payment in full.

p. 9
03

Entitlement of the respondents by occupation and use; constructive trust

Holding

The respondents' long, undisturbed occupation after full payment justified the trial court's finding that the appellants hold title in trust for them in respect of the 7 acres, consistent with constructive trust and proprietary estoppel doctrine

Reasoning

Following Kitilit and Segei, where a vendor receives the full price, gives possession and lets the purchaser remain undisturbed for many years, a constructive trust arises, and an oral agreement creating such an interest is enforceable by constructive trust or proprietary estoppel even if otherwise unenforceable. The counterclaim pleaded bona fide purchase and long possession, grounding the declarations granted.

04

Authenticity of land control board consents raised for the first time on appeal

Holding

A new evidentiary matter never pleaded or canvassed at trial cannot be raised on appeal

Reasoning

The contention that the consent letters were not genuine was raised for the first time on appeal; the respondents who produced them were never cross-examined on them and the trial judge did not deal with authenticity, so it is not a matter that can be entertained at this stage.

p. 8

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
  • A court may base a decision on an unpleaded issue where the course of the trial shows the issue was left to the court for decision
  • A claim for breach of an agreement for sale must be brought within six years from the date the cause of action accrued; a claim to recover land within twelve years
  • Where a vendor receives the full purchase price, puts the purchaser in possession and lets him remain undisturbed, a constructive trust arises notwithstanding want of transfer

Court orders

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

Authorities

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Legislation

  • Land ActSections 39 and 41
  • Land Control ActSection 6
  • Law of Contract ActSections 3(3) and 3(7)
  • Limitation of Actions ActSections 4(1), 7, 9 and 37(a)

Cases cited (9)

  • Kenya Ports Authority vs. Kuston (Kenya) Limited
    [2009] 2EA 212

    Duty of a first appellate court to re-evaluate evidence and draw own conclusions

  • Independent Electoral and Boundaries Commission and another vs Stephen Mutinda Mule and 3 others
    [2014] eKLR

    Parties are bound by their pleadings which limit the issues for trial

  • Gandy vs. Caspair
    [1956] EACA 139

    Parties bound by pleadings

  • Galaxy Paints Co. Ltd. vs. Falcon Guards Ltd
    [2000] 2 EA 385

    Parties bound by pleadings

  • Anthony Francis Wareham t/a AF Wareham & 2 others vs. Kenya Post Office Savings Bank
    [2004] eKLR

    Cases are tried and determined on the basis of the pleadings

  • Odd Jobs vs Mubia
    [1974] E A 476

    Court may decide an unpleaded issue left to it by the course of the trial

  • Willy Kimutai Kitilit vs. Michael Kibet
    [2018] eKLR

    Constructive trust arises where vendor receives full price and gives possession without transfer

  • William Kipsoi Segei vs. Kipkoech Arusei
    [2019] eKLR

    Constructive trust and proprietary estoppel enforceable regarding land subject to the Land Control Act

  • Yaxley v Gotts & Another
    (2000) Ch 162

    Oral agreement for sale of property creates enforceable interest via constructive trust or proprietary estoppel

On appeal from
Environment & Land Court at Mombasa
ELC Land Case No. 185 of 2013
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal 69 of 2019)

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, "Yawa & another (Suing as the legal representative of the estate of Makupe Yawa Mwalungo (Deceased)) v Baya & another", Case Analysis (2022). Civil Appeal 69 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/395/eng@2022-03-04

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