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ELCPartially AllowedELC. Case No. 384 of 2013· [2017] KEELC 507 (KLR)

Felister Nyokabi Mwangi v Grace W. Njoka [2017] KEELC 507 (KLR)

Environment and Land Court of Kenya
6 December 2017
1,876 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 upheld an oral promise to give extra land as compensation, ordering the seller's estate to transfer a half-acre plot to the buyer's widow.

What this practically means

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Executive summary

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The Plaintiff, administratrix of the estate of Stephen Mwangi Muruah, sued the Defendant, administratrix of the estate of the late Hon. Ezra Njoka, seeking a declaration that she is the lawful owner of L.R. No. 3577/45 (0.5 acre), cancellation of any title held by the Defendant, and a permanent injunction. Her case was that her late husband bought two acres from the late Ezra Njoka for Kshs. 500,000, but part of the land was taken up by a dam, and Njoka agreed to compensate him with an additional half acre plot, which she occupied and farmed from 2001. The Defendant denied any compensation agreement and counterclaimed for Kshs. 320,428 as apportioned land rates and rent, having abandoned an eviction claim in an amended defence. The Defendant argued that the absence of a written agreement offended Section 3(3) of the Law of Contract Act. The court framed five issues and, preferring the Plaintiff's evidence, found she had proved ownership of the half acre compensation plot on a balance of probabilities, noting the Defendant as administrator could not attest with certainty to the deceased's dealings and had not surveyed the plots to verify the shortfall. Adverse possession submissions were disregarded as not pleaded. The counterclaim failed for want of evidence of computation of the sum claimed. The court ordered registration of the Plaintiff as owner, directed the Defendant to execute transfer documents within 30 days (failing which the Deputy Registrar to execute), dismissed the counterclaim, issued a permanent injunction, and awarded the Plaintiff the costs of the suit and counterclaim. Judgment was delivered by K. Bor, J on 6 December 2017.

Key legal issues

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01

Whether an oral agreement for compensation by an additional plot of land is enforceable notwithstanding Section 3(3) of the Law of Contract Act

Holding

The court found for the Plaintiff, holding that the oral agreement for compensation was proved on a balance of probabilities through possession and uncontroverted evidence, notwithstanding the absence of a written agreement

Reasoning

The Defendant argued that no claim could lie without a written document under Section 3(3) of the Law of Contract Act. The court preferred the Plaintiff's evidence that the deceased Ezra Njoka personally showed her the half acre plot in 2001 as compensation for the shortfall in acreage. The Defendant, as administrator, could not state with certainty whether the deceased had compensated the Plaintiff, and could have verified the shortfall by survey. The Plaintiff's occupation and farming on the plot was evidence of possession. The court disregarded adverse possession submissions as the pleadings did not raise that claim.

p. 3
02

Whether the Defendant proved the counterclaim for apportioned land rates and rent

Holding

The counterclaim failed because no evidence was tendered on how the sum of Kshs. 320,428 was computed, and no receipts were produced

Reasoning

The Defendant's witness admitted the receipts for the claimed apportioned rates and land rent were not produced. The witness confirmed he had no objection to the Plaintiff occupying plots 6 and 7, undermining the claim. Without proof of the computation of the sum, the counterclaim could not succeed and was dismissed with costs to the Plaintiff.

p. 2
03

Whether the Plaintiff was in actual possession of the half acre plot

Holding

The court found the Plaintiff had been in occupation and farming the plot since 2001, and preferred her evidence over the Defendant's witness who claimed to have discovered trespass only in 2012

Reasoning

The Plaintiff testified she took possession of the plot in 2001 and carried out farming activities, planting bananas, trees and other crops. The Defendant's witness stated he only became aware of the Plaintiff's presence in 2012 when she sent away workers harvesting coffee. The court found the Defendant, as administrator of the deceased vendor's estate, could not attest with certainty to the dealings of the deceased, and the Defendant's failure to have the plots surveyed to verify the shortfall weighed against the Defendant.

p. 3

Legal principles established

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  • Where a vendor's estate administrator cannot verify with certainty whether the deceased compensated a purchaser, and the discrepancy in acreage is uncontroverted, the purchaser's claim of compensation by an additional plot can be proved on a balance of probabilities even without a written contract.

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful owner of the Suit Property (L.R. No. 3577/45)
  2. 2.The Plaintiff to be registered as the lawful owner of the Suit Property
  3. 3.The Defendant directed to execute the documents facilitating the registration of the Plaintiff as owner of the Suit Property within 30 days, failing which the Deputy Registrar of the Environment and Land Court to execute the documents for transfer
  4. 4.The Defendant's counterclaim dismissed with costs to the Plaintiff
  5. 5.A permanent injunction restraining the Defendant from interfering with the Plaintiff's ownership and title to the Suit Property
  6. 6.The Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
Jurisdiction invoked
Environment and Land Court jurisdiction (Environment and Land Court Act) over disputes relating to ownership and title of land; the judgment does not cite a specific constitutional provision

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, "Felister Nyokabi Mwangi v Grace W. Njoka [2017] KEELC 507 (KLR)", Case Analysis (2017). ELC. Case No. 384 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/507/eng@2017-12-06

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