Kiptum v Birir & another (Civil Appeal 66 of 2020) [2023] KECA 482 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a verbal promise of land, acted on in good faith, is legally enforceable despite not being in writing.
What this practically means
#Executive summary
#Key legal issues
#Application of section 3(3) and 3(4) of the Law of Contract Act to trusts
The Appellant's claim could not be founded on section 3(3) but could rest on section 3(4), which preserves resulting, implied or constructive trusts; the trial judge ignored subsection (4)
The Court noted that subsection (3) voids oral contracts for the disposition of land, but the proviso and subsection (4) expressly preserve the creation and operation of resulting, implied and constructive trusts. Relying on the Supreme Court's decision in Macharia Mwangi Maina and Yaxley v Gotts, the Court held that an oral agreement creating an interest in land, though unenforceable as a contract, is enforceable through constructive trust or proprietary estoppel where there is common intention and detrimental reliance.
Existence of employer/employee relationship and jurisdiction of the ELC
No employer/employee relationship existed; the trial judge erred in holding the counterclaim belonged to the Employment and Labour Relations Court
There was no evidence of wages or salary or an agreed mode of remuneration; the 1st Respondent denied any employment arrangement. The offer of land was an independent act of appreciation, not remuneration. Holding that every gift or reward for exemplary service creates employment would stretch the concept too far, so the Appellant's land claim properly lay before the Environment and Land Court.
Constructive and resulting trust over the suit property
The Respondents hold the excised parcels in trust for the Appellant based on their representation and her detrimental reliance
The Respondents expressly represented they would give the Appellant a portion of the land; she undertook extensive developments in reliance on that representation and with their knowledge. A constructive trust based on common intention thus arose, and by registering the excised portion in the Respondents' names, a resulting trust was also created. Equity will not permit the Respondents to renege on representations on which the Appellant acted.
Size of the land offered
The agreement was in respect of 1/8 of Kilifi/Mtwapa/48 (the original 12-acre parcel), not Kilifi/Mtwapa/3834, which did not exist when the offer was made
Parcel 3834 was registered in 2012, whereas the offer predated it; the Appellant's developments predated the parcel's existence. The Respondents unilaterally reduced the offered acreage from 1.5 to 1 acre, which the Appellant accepted. The Appellant was in actual occupation of at least a quarter of the original parcel and was never asked to vacate.
Effect of subdivision and sale pendente lite
The doctrine of lis pendens applies; transfers during litigation are voidable and bind purchasers, but no adverse orders could issue against non-party purchasers
Relying on Naftali Ruthi Kinyua, Bellamy v Sabine and Mawji, the Court held lis pendens is a common law doctrine surviving the repeal of section 52 ITPA via section 107(1) of the Land Registration Act and section 3(1) of the Judicature Act. The transfer pendente lite is voidable, the transferee standing in the transferor's shoes subject to the litigation. However, purchasers not joined to the suit could not have adverse orders made against them.
Adequacy of the trial judgment under Order 21 rule 4
The failure to address the Respondents' admission was superfluous given the dismissal, but the failure to make a finding on the Appellant's developments was an error
Having dismissed the counterclaim, any decision on the admission would have been merely superfluous, and the Court will not disturb a finding for format irregularity where evidence supports it. However, since the Respondents conceded the Appellant had undertaken developments and were willing to compensate her, the trial judge erred in failing to deal with the valuation issue.
Legal principles established
#- Section 3(3) of the Law of Contract Act does not bar a claim founded on a resulting, implied or constructive trust, and an oral agreement for disposition of land may be enforced through constructive trust or proprietary estoppel where the claimant acted in detrimental reliance on a common intention
- An offer of a reward or gift of land in appreciation of services does not of itself create an employer/employee relationship, and a claim founded on such an offer lies within the Environment and Land Court
- An appellate court will not disturb a trial decision merely because of an irregularity in the format of the judgment if the evidence supports it
- Transfers of suit property pendente lite are voidable, not void, and bind purchasers who take subject to the pending litigation, whether or not they had notice
- An employee permitted to reside on an employer's property cannot claim adverse possession against the employer
Court orders
#- 1.The Respondents' suit against the Appellant is dismissed with costs to the Appellant
- 2.Declaration that the Appellant is entitled to ownership and possession of all parcels excised from Kilifi/Mtwapa/3834 (Nos. 5487, 5486, 5485, 5484, 5483, 5482, 5481) and that the same are held in trust for her by the Respondents
- 3.Mandatory order directing the Respondents to transfer the said properties to the Appellant, failing which the transfer be effected by the Deputy Registrar of the Environment and Land Court
- 4.Permanent injunction restraining the Respondents from interfering with the Appellant's quiet enjoyment and occupation of the said properties
- 5.Remittal to the trial court, pursuant to rule 33 of the Court's Rules, to determine the value of Kilifi/Mtwapa/5488 free from any developments, which value shall be deemed a decree against the Respondents in favour of the Appellant
- 6.Costs of the appeal awarded to the Appellant
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa Environment and Land Case No. 407 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 33 invoked for remission)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Machariah & another v Noble Star Academy & another (Environment and Land Miscellaneous Case E061 of 2025) [2025] KEELC 5964 (KLR)[2025] KEELC 5964 (KLR)29 Aug 2025
- Ekiru & 4 others v Jillo (Environment and Land Appeal E052 of 2022) [2024] KEELC 3253 (KLR)[2024] KEELC 3253 (KLR)7 Mar 2024applied
Cite this brief
#Cite this brief
Caselaw, "Kiptum v Birir & another (Civil Appeal 66 of 2020) [2023] KECA 482 (KLR)", Case Analysis (2023). Civil Appeal (Mombasa) from Mombasa Environment and Land Case No. 407 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/482/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.