Milcah Munyiva Kyeva v Ancent Wambua Kitonyi [2017] KEELC 1244 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the restriction on the suit land should be lifted
The application to remove the restriction was dismissed as without merit
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.
Whether the Defendant's sale agreements were a nullity under Section 3(3) of the Law of Contract Act
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
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.
Legal principles established
#- 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
#- 1.The Application dated 18th August, 2015 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.