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ELCPartially AllowedCivil Suit No. 26 of 2011· [2017] KEELC 935 (KLR)

Kusi Mukami Kimani v Mercy Syong’ombe Kitheka [2017] KEELC 935 (KLR)

Environment and Land Court
16 November 2017
AOA. Omollo
2,924 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered owner of Kwale/Ukunda/2860 following transfer from her mother Anne W. Kimani (widow and joint owner with the late Rama Matano), sued the defendant for declarations of entitlement to possession, trespass, a permanent injunction, vacant possession, general damages and costs. The defendant asserted she purchased the suit property in 1998 from Rama Matano with funds paid through her late husband Bent Leo Kock, occupying since 1998 as owner and never paying rent. The court identified the key question as whether the defendant occupied as tenant or purchaser. It found payments totalling about Kshs 1,928,764 were made to Rama, below the alleged Kshs 2.5 Million price, and concluded a sale transaction between Rama and Bent existed but was never completed, probably on Bent's death in September 1998. The oral agreement was not invalidated by section 3(3) of the Law of Contract Act since that provision was operationalised only in 2003. However, the sale was a nullity because Anne Kimani, the co-owner, did not consent, and Rama's undefined share in a joint ownership could not pass any enforceable interest; no implied or resulting trust arose. The defendant's initial entry was as a buyer with Rama's consent, but her continued occupation after the eviction notice constituted trespass. Vacant possession was ordered within 45 days, default attracting eviction. Damages for trespass were refused because the plaintiff acquired her interest aware of the defendant's possession and the eviction notice offered no refund. The defendant was left free to pursue a refund claim against Rama's estate. Each party bore own costs.

Key legal issues

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01

Capacity of the defendant's entry and occupation

Holding

The defendant entered as a buyer with Rama Matano's consent, not as a tenant, but became a trespasser after the eviction notice of 2.10.2009

Reasoning

The court found from the evidence of payments to Rama, the electricity account authorisation and the parties' conduct that the entry was as purchaser. However, once the joint eviction notice was served and no refund offered, continued occupation constituted trespass.

p. 4
02

Effect of absence of co-owner's consent

Holding

Anne Kimani's consent to the sale could not be assumed; the transaction was a nullity and could pass no enforceable interest to the defendant

Reasoning

The property was jointly owned by Anne and Rama. DW 2 admitted a co-owner cannot sell without the other's involvement. Rama's share could not be defined in joint ownership, so nothing enforceable passed to the defendant, who conceded the co-owner was not party to the sale.

p. 4
03

Compliance with section 3(3) Law of Contract Act

Holding

Section 3(3) was not operational at the time of the 1998 oral agreement, so the lack of writing did not invalidate the sale

Reasoning

The defendant submitted, and the court accepted, that section 3(3) came into operation in 2003 and could not apply retrospectively to a 1998 agreement. The defect that defeated the defendant was instead the missing co-owner's consent.

p. 4
04

Completion of purchase price

Holding

The sale transaction was not completed; the sums proved fell short of the agreed price

Reasoning

The court totalled the proved payments at about Kshs 1,928,764, below the alleged Kshs 2.5 Million price. The alleged deposit of Kshs 1,125,000 was not proved as separate from the 75,000 Danish Krone. Bent's death in September 1998 probably prevented completion.

p. 4

Legal principles established

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  • An oral sale of land entered into before the operationalisation of section 3(3) of the Law of Contract Act is not invalidated by lack of writing
  • A sale by one joint owner without the consent of the co-owner is a nullity incapable of passing an enforceable interest

Court orders

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  1. 1.Prayer for vacant possession of the suit property and prayer (c) of the plaint allowed
  2. 2.The Defendant ordered to surrender vacant possession within 45 days of the judgment
  3. 3.In default of surrendering vacant possession, eviction to issue
  4. 4.Each party to bear their costs of the suit

Authorities

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Legislation

  • Law of Contract Act (Cap 23)section 3(3)
Jurisdiction invoked
Environment and Land Court jurisdiction over land claims (suit property Kwale/Ukunda/2860)

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, "Kusi Mukami Kimani v Mercy Syong’ombe Kitheka [2017] KEELC 935 (KLR)", Case Analysis (2017). Civil Suit No. 26 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/935/eng@2017-11-16

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