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ELCPartially AllowedLand Case No. 37 of 2013· [2015] KEELC 478 (KLR)

Willy Kimutai Kitilit v Michael Kibet [2015] KEELC 478 (KLR)

Environment and Land Court
5 May 2015
EOE. Obaga
1,962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a buyer who paid in full and occupied the land owns an equitable interest, even without land control board consent.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR. No. Kaplamai/Sirende Block 1/Kiplongon/60, sued seeking a declaration that the defendant had no proprietory rights over the land and a temporary injunction against interference. The defendant, who had bought two acres out of the parcel under an agreement dated 8.8.2008 for Kshs.300,000, filed a defence and counter-claim seeking specific performance or, in the alternative, a refund of the purchase price. The court framed three issues: whether the purchase price was payable within one month, whether the defendant had proprietory rights, and whether specific performance could be granted despite the absence of land control board consent. The court found the agreement did not require payment within one month and that a party is bound by his pleadings. The defendant paid the full purchase price by instalments (clearing it by 2010), was put into possession in 2009 with the plaintiff's knowledge, and fenced and farmed the land; the plaintiff obtained title only in 2012 and then evicted the defendant rather than taking him before the land control board. Applying the Court of Appeal decision in Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri, the court held that receiving the full purchase price and putting the purchaser in possession created an implied or constructive trust that is not defeated by want of land control board consent. The plaintiff's claim was dismissed with costs, and judgment was entered on the counter-claim for specific performance of the transfer of two acres, with execution by the Deputy Registrar if the plaintiff defaulted, plus costs of the suit and counter-claim.

Key legal issues

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01

Whether the purchase price was to be paid within one month

Holding

It was not; the agreement provided for the balance to be paid on 20.9.2008 and the plaintiff's pleading that payment was due within one month was unsupported by the agreement

Reasoning

The agreement dated 8.8.2008 provided for payment of Kshs.150,000 on execution and the balance on 20.9.2008, not full payment within one month. The plaintiff was bound by his pleadings and could not depart from them, and the agreement did not support his pleadings or evidence that full payment was due within one month.

p. 3
02

Whether the defendant has proprietory rights over the suit land

Holding

Yes; the plaintiff's receipt of the full purchase price and putting the defendant in possession created an implied or constructive trust in the defendant's favour

Reasoning

The defendant paid the entire purchase price and was put into possession in 2009 with the plaintiff's full knowledge, before the plaintiff obtained title in 2012. The plaintiff was to take the defendant before the land control board for consent but instead evicted him. Following the Court of Appeal in Macharia Mwangi Maina, such facts create an implied or constructive trust that binds the registered owner notwithstanding want of land control board consent.

p. 4
03

Whether specific performance is available notwithstanding absence of land control board consent

Holding

Yes; the defendant is entitled to specific performance despite the transaction not having received land control board consent

Reasoning

Relying on Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri, where the Court of Appeal set aside an eviction and held that a constructive trust arising from sale and possession is not defeated by want of consent, the court held the defendant entitled to specific performance of the agreement for transfer of two acres, the trust being an overriding equitable interest.

p. 4

Legal principles established

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  • A vendor who receives the entire purchase price and puts the purchaser in possession creates an implied or constructive trust in favour of the purchaser, which is not defeated by the absence of land control board consent

Court orders

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  1. 1.Dismissal of the plaintiff's claim with costs to the defendant
  2. 2.An order of specific performance requiring the plaintiff to execute all necessary documents to effect transfer of two acres to the defendant out of LR. No. Kaplamai/Sirende Block 1/Kiplongon/60, failing which the Deputy Registrar of the court to execute the documents on his behalf
  3. 3.The plaintiff to pay the costs of the suit and of the counter-claim to the defendant

Authorities

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Legislation

  • Registered Land Actsection 126(1)
  • Registered Land Actsection 163
  • Registered Land Actsection 30(g)
  • Limitation of Actions Act
  • Land Control Act

Cases cited (8)

  • Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri
    Nyeri Civil Appeal No. 6 of 2011
  • Mwangi & another -vs- Mwangi
    (1986) KLR 328
  • Mutsonga – vs- Nyati
    (1984) KLR 425
  • Kanyi -vs- Muthiora
    (1984) KLR 712
  • Yaxley -vs- Gotts & another
    (2000) Ch 162
  • Lyyods Bank PLC – vs – Rosset
    (1991) 192, 107, 132
  • Steadman -vs- Steadman
    (1976) AC 536
  • Sammy Likunyi Adiema and Charles Shamwati Shisikani
    Kisumu Court of Appeal Civil Appeal No. 3 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Willy Kimutai Kitilit v Michael Kibet [2015] KEELC 478 (KLR)", Case Analysis (2015). Land Case No. 37 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/478/eng@2015-05-05

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