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ELCDismissedNot stated in the judgment (Application dated 18th August, 2015)· [2017] KEELC 1244 (KLR)

Milcah Munyiva Kyeva v Ancent Wambua Kitonyi [2017] KEELC 1244 (KLR)

Environment and Land Court
2 November 2017
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Machakos land court refused to remove a restriction on a title because the buyer's claim of an old purchase deserved a full hearing.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Matungulu/Katine/350 since 14th February 2009, applied by notice of motion dated 18th August 2015 for removal of a restriction registered on the title. He deponed that the Registrar had admitted the restriction was registered by mistake. The Defendant opposed, deponing that he purchased portions of the suit land ('2 benches' in 1981 from Kituku Kyeva and 'one bench' in 1990 from Peter Mwanzia Kituku), that the land was later adjudicated to Peter Mwanzia, and that the Plaintiff procured transfer fraudulently. The Defendant had filed a Citation in Machakos High Court Succession Cause No. 518 of 2013 over Peter Mwanzia's estate, still pending. The Plaintiff countered that the land belonged to his father, that Kituku Kyeva was his brother, and that the Defendant's agreements lacked material particulars; his advocate argued the agreements were a nullity under Section 3(3) of the Law of Contract Act. Angote J held that the pre-2003 version of Section 3(3), with its part-performance proviso, differed substantially from the 2003 amendment and that the Plaintiff's counsel had not addressed the pre-2003 position. Since the Defendant had produced agreements evidencing purchase, he should be given an opportunity to prove the sale was not fraudulent, and the validity of his claim was likely to be decided in the pending succession Citation. The court found the application without merit and dismissed it with no order as to costs.

Key legal issues

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01

Whether the restriction on the suit land should be lifted

Holding

The application to remove the restriction was dismissed as without merit

Reasoning

The court noted that the restriction was registered on account of the Defendant's asserted beneficial interest. The Defendant had produced agreements evidencing purchase of portions of the land between 1981 and 1990, before the 2003 amendment to Section 3(3) of the Law of Contract Act, so the writing requirement did not defeat his claim at this interlocutory stage. A pending succession Citation also meant the validity of his claim was likely to be determined there. The Plaintiff's application was therefore premature and without merit.

p. 3
02

Whether the Defendant's sale agreements were a nullity under Section 3(3) of the Law of Contract Act

Holding

No - the pre-2003 version of Section 3(3) contained a proviso protecting intending purchasers in part performance, and the court was not addressed on the law before 2003

Reasoning

The Plaintiff's advocate argued the agreements were a nullity under Section 3(3) but did not address the court on the provision as it stood before 2003. The court reproduced the pre-2003 text, which exempted from the writing requirement an intending purchaser who had taken possession or continued in possession in part performance, and held it differed substantially from the amended provision. The Defendant was thus entitled to an opportunity to prove his purchase.

p. 2

Legal principles established

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  • Where a defendant has produced agreements showing he bought portions of the suit land, he should be given an opportunity to prove the sale was not fraudulent, especially where the pre-2003 proviso to Section 3(3) of the Law of Contract Act applies
  • Before the 2003 amendments, Section 3(3) of the Law of Contract Act excepted suits founded on contracts partly performed, where the intending purchaser had taken or continued in possession in part performance

Court orders

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  1. 1.The Application dated 18th August, 2015 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Law of Contract ActSection 3(3) (pre-2003 and as amended in 2003)
Jurisdiction invoked
Not stated in the judgment

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, "Milcah Munyiva Kyeva v Ancent Wambua Kitonyi [2017] KEELC 1244 (KLR)", Case Analysis (2017). Not stated in the judgment (Application dated 18th August, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1244/eng@2017-11-02

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