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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 608 (KLR)

Peter Kagunza Adaji v Sikukuu Martin Maiyo & another [2017] KEELC 608 (KLR)

Environment and Land Court
20 December 2017
3,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a land seller to complete the transfer despite missing spousal and Land Control Board consent, because the buyer had paid in full and taken possession.

What this practically means

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Executive summary

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The plaintiff bought portions of land parcel Kaisagat/Chepkoilel Block 5/Amuka/13 (9.3 acres) from the 1st defendant under three agreements (24/3/2008, 15/4/2009 and 18/1/2010), paid the full purchase price including the 1st defendant's Agricultural Finance Corporation loan and discharge fee, and took possession. He surrendered 2.25 acres back to the defendants under a 28/8/2012 agreement in which they were to pay him Kshs.540,000/=, which they never paid. The 1st defendant declined to effect transfer and the 2nd defendant, his wife, registered a caution. She defended and counterclaimed, asserting the land was matrimonial property sold without her consent, that Land Control Board consent was never obtained, and seeking declarations of voidness, a permanent injunction and eviction. The 1st defendant never appeared. The court framed four issues. It held that no spousal consent was required because the Matrimonial Property Act 2013 is not retrospective, the applicable law was the repealed Registered Land Act regime, and the 2nd defendant proved no express or implied trust or contribution. On Land Control Board consent, following Macharia Mwangi Maina and John Simiyu Ndalila, the court found the 1st defendant had created a constructive trust by receiving the full price and giving possession, so the defendants were estopped from pleading voidness. The caution was therefore improper. Prayers (a), (b) and (c) of the plaint were granted: the caution lifted and the 1st defendant ordered to transfer within 30 days, failing which the Deputy Registrar would execute the documents, with costs and interest to the plaintiff. The counterclaim was dismissed with costs to the defendant in the counterclaim.

Key legal issues

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01

Whether the 2nd defendant's spousal consent was required for the sale transactions

Holding

No consent was required; the Matrimonial Property Act 2013 is not retrospective and no trust was proved

Reasoning

The Matrimonial Property Act commenced on 16 January 2014, after the sale agreements, and has not been shown to have retrospective effect. The applicable law was the Married Women Property Act and the Registered Land Act, under which spousal consent was not required. The 2nd defendant, though the registered owner was her husband, proved neither express nor implied trust, having shown no monetary or other contribution to acquisition. The 1st defendant was the sole registered proprietor and the suit property was therefore held not to be matrimonial property capable of blocking the sale.

p. 5
02

Whether Land Control Board consent was necessary and whether its absence voids the sale

Holding

Consent would ordinarily be required for agricultural land, but the defendants are estopped from relying on its absence because the 1st defendant created a constructive trust in the plaintiff's favour

Reasoning

The suit land is agricultural land. The 1st defendant received the full purchase price and placed the plaintiff in possession. Following Macharia Mwangi Maina and John Simiyu Ndalila, the court found a common intention and a constructive trust, an equitable concept. Consent of the Land Control Board is not required where a trust is created over agricultural land, and a vendor who has received the full purchase price is estopped from pleading voidness under section 6 of the Land Control Act.

03

Whether the 2nd defendant's caution over the suit land was proper

Holding

The caution was improper and ought to be removed forthwith

Reasoning

Flowing from the findings that no spousal consent was required and that the want of Land Control Board consent did not defeat the plaintiff's accrued rights, the 2nd defendant had no sustainable interest to protect by caution. The court held the registration improper and ordered it lifted as part of the reliefs granted on the plaint.

p. 6

Legal principles established

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  • Under the repealed Registered Land Act, spousal consent was not a requirement for sale of registered land; it became a requirement with the Land Registration Act, 2012, which is not retrospective
  • Where a vendor receives the full purchase price and places the purchaser in possession of agricultural land, a constructive trust arises and want of Land Control Board consent does not defeat the purchaser's accrued rights
  • The onus of proving a trust lies on the party asserting it; mere purchase during marriage without proof of contribution does not establish a trust

Court orders

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  1. 1.A declaration that the 1st defendant's failure to transfer the suit land and the 2nd defendant's caution over it are illegal and unjustified, and lifting of the said caution
  2. 2.An order compelling the 1st defendant to transfer the suit land Kaisagat/Chepkoilel Block 5/Amuka/13 to the plaintiff within 30 days, failing which the Deputy Registrar shall execute all necessary documents to effect the transfer
  3. 3.Costs and interest of the suit to the plaintiff (prayers (a), (b) and (c) of the plaint granted as prayed)
  4. 4.The 2nd defendant's counterclaim dated 2nd March 2016 dismissed with costs to the defendant in the counterclaim

Authorities

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Legislation

  • Land Act2012
  • Land Registration ActSections 25 and 28
  • Matrimonial Property ActSection 12
  • Land Control ActSection 6
  • Registered Land ActSection 39(2)
  • Married Women Property Act

Cases cited (9)

  • Peninah Wambui Mugo -vs- NMK and MMN
    Nakuru HCCC No. 238 of 2004
  • Echaria -vs- Echaria
  • Fredrick Chege Ndogo -vs- Bernard Njoroge Mbugua & 2 Others
    C.A No. 278 of 2006
  • Pettit -vs- Pettit
  • Odd Jobs -vs- Mubia
    (1970) EA 476
  • Chumo Arap Songok -vs- David Kibiero Rotich
    (2006) eKLR
  • Macharia Mwangi Maina & 87 Others -vs- Davidson Mwangi Kagiri
    eKLR
  • Lloyds Bank PLC -vs- Rosset
    1991 1 AC 107
  • John Simiyu Ndalila -vs- Francis Soita
    2014 eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim relating to land (suit land Kaisagat/Chepkoilel Block 5/Amuka/13); no specific provision cited

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, "Peter Kagunza Adaji v Sikukuu Martin Maiyo & another [2017] KEELC 608 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/608/eng@2017-12-20

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