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ELCPartially AllowedLand Case No. 11 of 2013· [2016] KEELC 1173 (KLR)

Sarah Nasambu Musundi v David Wafula Tela [2016] KEELC 1173 (KLR)

Environment and Land Court
19 January 2016
1,433 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 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

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Executive summary

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The plaintiff bought 0.2 of an acre from the defendant out of plot No. 250 at Birunda, Trans-Nzoia County, under a 1995 agreement, paid the full purchase price and took immediate possession, building a house on the portion. A surveyor created an access road in 1997, but the defendant blocked it. The plaintiff sued for an order that the surveyor reopen the access road; the defendant, conceding the sale but asserting that the transaction lacked land control board consent and was therefore null and void, counter-claimed for the plaintiff's eviction. The court found the sale agreement, full payment, possession since 1995 and the blocking of the road to be common ground, and that no land control board consent had been obtained. It held that a seller must give a buyer an access road created by a surveyor, and the buyer, not the seller, cannot dictate its location. On the counter-claim, the court followed the Court of Appeal decision in Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri, holding that although the transaction was void for want of consent, the doctrines of proprietary estoppel and constructive trust prevented the vendor who had put the purchaser in possession from evicting her, applying Lord Bridge's 'common intention' test from Lloyds Bank Plc v Rosset. The court ordered the County Surveyor to proceed to plot No. 250 and create a road of access, dismissed the counter-claim, and awarded the plaintiff costs of the suit and the counter-claim.

Key legal issues

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01

Entitlement to re-opening of the blocked access road

Holding

The plaintiff is entitled to an order that the county surveyor re-open the access road created by a surveyor

Reasoning

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.

p. 2
02

Effect of want of land control board consent on the seller's counter-claim for eviction

Holding

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

Reasoning

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.

p. 3
03

Basis of constructive trust

Holding

A constructive trust is based on common intention actually reached between the parties and relied on and acted upon by the claimant

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The defendant's counter-claim dismissed
  3. 3.Plaintiff to have costs of the suit and of the dismissed counter-claim

Authorities

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Legislation

  • Land Control Actconsent requirement

Cases cited (2)

  • Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri
    Civil Appeal No. 6 of 2011 (consolidated with Civil Appeals Nos. 26 and 27 of 2011), Nyeri
  • Lloyds Bank Plc vs Rosset
    (1991) 1 AC 107, 132
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes in Trans-Nzoia County

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, "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.