William Kipsoi Sigei v Kipkoech Arusei & another [2015] KEELC 13 (KLR)
The bottom line
#A Kenyan vendor who took payment and handed over land decades ago cannot use missing Land Control Board consent to evict the buyer now.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the cross-appeal
The cross-appeal filed on 8.7.2013, more than two years after the decree of 2.3.2011 and without leave or certificate of delay, was filed out of time and was dismissed with costs
Section 79(c) of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty days of the decree, with a proviso permitting admission out of time on good and sufficient cause. No certificate of delay existed and no leave to file out of time had been granted, so the cross-appeal could not stand.
Applicability of the Land Control Act
The appellant failed to prove that the disputed plot falls within a Land Control Area or is agricultural land, so the plea of lack of Land Control Board consent failed
The court set out the statutory definition of agricultural land under the Land Control Act and the prohibition in section 6 on dealings with agricultural land in a land control area without consent. However, the burden lay on the appellant to establish that the land was agricultural land within a land control area, and on the evidence he did not discharge it.
Implied and resultant trusts despite any invalidity
Even had the land been within a land control area, the vendor's receipt of the purchase price, delivery of possession, the purchaser's continued possession and improvements created an implied trust in favour of the 1st respondent and a resultant trust in favour of the 2nd respondent, defeating the appellant's claim
The court held that equity will not permit the vendor to retain the benefit of the money received and possession given since 1991, while using the Land Control Act to recover the land by offering a refund without interest. Such conduct was found to lack good faith, and the trusts created protected the respondents' occupation.
Adequacy of proof by both sides in the lower court
The magistrate correctly found that neither the respondents proved their claim nor the appellant his counterclaim on a balance of probabilities, and this finding was upheld
On re-evaluation of the evidence, the trial court's conclusion that neither side discharged the burden of proof was found sound. The magistrate did not err in his findings and decision, so both the appeal and the cross-appeal failed.
Legal principles established
#- On a first appeal the court must re-evaluate, re-assess and re-analyse the evidence on the record and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- Under section 79(c) of the Civil Procedure Act an appeal from a subordinate court must be filed within thirty days, and a cross-appeal filed out of time without leave is liable to be dismissed
- A vendor who receives the purchase price and gives possession, which the purchaser has retained and improved, creates an implied trust that cannot be defeated by invoking the Land Control Act to recover the land
- The Land Control Act governs transactions in agricultural land, defined by reference to whether land is within a municipality, township, trading centre or market
Court orders
#- 1.The cross-appeal is dismissed with costs for having been filed out of time without leave
- 2.The appeal and cross-appeal are dismissed with costs to the respondents and appellant respectively
- On appeal from
- Chief Magistrate's Court, Eldoret
- Not stated (land dispute suit; tribunal award adopted as Eldoret CMCC Award No. 101 of 2002 was a prior related matter)
- Jurisdiction invoked
- First appeal under Section 79 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kipsoi Sigei v Kipkoech Arusei & another [2015] KEELC 13 (KLR)", Case Analysis (2015). Not stated in the judgment (Eldoret High Court appeal from Eldoret Chief Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/13/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.