Sarah Nasambu Musundi v David Wafula Tela [2016] KEELC 1173 (KLR)
The bottom line
#A Kenyan court ruled that a land seller cannot evict a buyer who paid in full and lived on the land for 20 years, even without official consent.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to re-opening of the blocked access road
The plaintiff is entitled to an order that the county surveyor re-open the access road created by a surveyor
The court held it is common practice that once a seller sells a portion of land, the buyer must be given an access road, properly created by a qualified surveyor given the need for future subdivision and mapping. The defendant's claim that the road was created in his absence did not avail him, as affected parties are normally informed and his absence was his own problem.
Effect of want of land control board consent on the seller's counter-claim for eviction
Although the transaction was null and void for want of consent, the defendant could not evict the plaintiff because a constructive trust and proprietary estoppel arose from putting her in possession
Relying on the Macharia Mwangi Maina decision, the court held that a vendor who permits a purchaser to take possession and acts as though the purchaser were to obtain proprietary interest cannot turn around and evict them on the ground of want of consent. The plaintiff had lived on the land for 20 years and paid the full purchase price, making eviction unconscionable.
Basis of constructive trust
A constructive trust is based on common intention actually reached between the parties and relied on and acted upon by the claimant
The court adopted Lord Bridge's exposition in Lloyds Bank Plc v Rosset as cited by the Court of Appeal in Macharia Mwangi Maina, and the appellate holding that nothing in the Land Control Act prevents claimants from relying on a constructive trust created by the facts, an equitable concept acting on the conscience of the legal owner.
Legal principles established
#- A seller of a portion of land must give the buyer a road of access, and the seller cannot dictate where the access road created by a surveyor should pass
- A seller who has put a purchaser in possession on payment of the full purchase price cannot rely on want of land control board consent to evict the purchaser; the doctrines of proprietary estoppel and constructive trust apply
Court orders
#- 1.The County Surveyor to proceed to plot No. 250 at Birunda and create a road of access to the property which the plaintiff purchased
- 2.The defendant's counter-claim dismissed
- 3.Plaintiff to have costs of the suit and of the dismissed counter-claim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes in Trans-Nzoia County
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Nasambu Musundi v David Wafula Tela [2016] KEELC 1173 (KLR)", Case Analysis (2016). Land Case No. 11 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1173/eng@2016-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.