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ELCDismissedELC No. 817 of 2015· [2017] KEELC 1149 (KLR)

Anderson Omondi Owandho (suing as the legal rep. of the Estate of Thomas Owandho Rajwai (Deceased) v Augustinos Ondiek [2017] KEELC 1149 (KLR)

Environment and Land Court
24 October 2017
JOJ.O. Olola
2,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld an 1993 oral land swap because the buyer had occupied the land for decades and sued too late.

What this practically means

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Executive summary

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The Plaintiff, as legal representative of the estate of Thomas Owandho Rajwai (deceased), the registered owner of land parcel Kisumu/Kawino/2580, sued the Defendant for permanent injunction and eviction, alleging trespass in 2008. The Defendant admitted occupation since 1993 but asserted that he had entered into an oral agreement with the Plaintiff's father exchanging the suit property for his own parcel (No. 2285, measuring 0.816 Ha) at the Ahero/Nyando Irrigation Scheme, upon which he built his homestead, buried his son and grandchildren, and enjoyed peaceful occupation until a dispute arose in 2007. The court accepted the Defendant's account, finding on his demeanour and the surrounding circumstances that he did not take the land by stealth or fraud, and that the land remained in the deceased's name only because adjudication had not been completed at the time of the exchange. The court held that a valid oral exchange agreement existed and that the Defendant took possession in part performance. Applying Section 3(3) of the Law of Contract Act, which came into effect on 1 June 2003, and Section 3(7), the court held the writing requirement did not apply to the 1993 oral contract. Further, the suit filed in 2011 to challenge a 1993 transaction was held to be hopelessly out of time. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Validity and enforceability of the alleged oral exchange agreement

Holding

The court accepted that a valid oral exchange agreement existed between the Defendant and the Plaintiff's father in 1993, under which the Defendant gave parcel No. 2285 at the Ahero/Nyando Irrigation Scheme in exchange for the suit property.

Reasoning

The court considered the Defendant's demeanour and found he did not appear to have taken the land by stealth or fraud. The Plaintiff never alleged forceful possession. The land remained registered in the deceased's name because no adjudication had been done at the time of the exchange. Possession since 1993, burying family members on the land, and the absence of any other nearby parcel from which the Defendant could have trespassed corroborated the exchange.

p. 4
02

Applicability of Section 3(3) of the Law of Contract Act to the oral agreement

Holding

Section 3(3), effective 1 June 2003, does not invalidate the 1993 oral exchange; the pre-2003 proviso preserved suits founded on part performance.

Reasoning

The court set out the pre-2003 text of Section 3(3), which contained a proviso protecting an intending purchaser or transferee who had taken possession in part performance. Section 3(7) excludes the application of Section 3(3) to contracts made before commencement. Since the exchange occurred in 1993 and the Defendant took and continued in possession, the agreement was not defeated by the writing requirement.

p. 4
03

Limitation

Holding

The suit filed in 2011 to challenge a 1993 transaction was hopelessly out of time.

Reasoning

The Defendant had occupied the land peacefully and uninterruptedly since 1993, building a homestead and burying family members there. The Plaintiff only raised a complaint in 2007 and filed suit in 2011, more than 12 years after the transaction and the Defendant's entry into possession. The court held such a challenge could not be allowed to stand.

p. 4

Legal principles established

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  • Section 3(3) of the Law of Contract Act, which came into effect on 1 June 2003, does not apply to oral contracts for the disposition of interest in land concluded before its commencement
  • An oral contract for the disposition of land made before the 2003 amendment is enforceable where the party has taken possession in part performance

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Law of Contract ActSection 3(7)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (suit filed with consent of the Area Land Adjudication Officer as land was under adjudication)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anderson Omondi Owandho (suing as the legal rep. of the Estate of Thomas Owandho Rajwai (Deceased) v Augustinos Ondiek [2017] KEELC 1149 (KLR)", Case Analysis (2017). ELC No. 817 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1149/eng@2017-10-24

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