Rashid Kipkurgat Too v Zibora Saina Seroney [2018] KEELC 467 (KLR)
The bottom line
#An Eldoret court ruled that a woman who paid for land and openly occupied it for 17 years is its rightful owner, despite no written agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant proved payment of the consideration of Kshs. 500,000 in lieu of the Eldoret West plot
Yes. The pay-in slips into the plaintiff's KCB account, together with the plaintiff's admission of holding the account and failure to deny or return the money, proved payment.
The defendant and her son DW2 testified that monies were paid into the plaintiff's KCB Eldoret account by banker's cheque and produced the pay-in slips. The plaintiff admitted holding the account but neither confirmed nor denied receipt. The court held the slips constituted prima facie evidence of receipt, since there was no proof the money was returned to the depositor, and asked rhetorically why a non-charitable party would deposit money absent an underlying agreement.
Whether the absence of a written sale agreement and of Land Control Board consent defeated the defendant's claim
No. The transaction predated the 2003 amendment to the Law of Contract Act, and equity (constructive trust) applies notwithstanding the lack of consent.
The court accepted the defendant's submissions relying on Michuki and Kitilit that section 3(3) of the Law of Contract Act, which came into force in 2003, does not apply to oral land transactions concluded earlier, and that lack of Land Control Board consent does not preclude giving effect to equitable principles such as constructive trust. The court noted the defendant had been in occupation since 1998, building and burying her children, and declined to let the plaintiff use the consent requirement to defeat her rights.
Whether the plaintiff's claim that the defendant is a trespasser/licensee succeeded
No. The defendant proved she was a bona fide purchaser for value in possession, not a mere licensee; the plaintiff held the land in trust for her.
The court found the exchange of one acre undisputed, payment proved, and occupation of over 17 years evidenced by construction of a permanent house, a borehole, a toilet, planting of trees and burial of two children with the plaintiff's permission. The plaintiff's submissions were characterised as intended to defeat justice and clothe eviction with legality; the court refused to allow impunity and illegality to deny the rights of the vulnerable in long occupation.
Whether the burden of producing a certified extract of the register defeated the counterclaim
The court did not uphold this objection; the defendant's proved payment, possession and occupation entitled her to registration of the one acre.
Although the defendant admitted in cross-examination that she had not tendered a certified extract of the register and had no Land Control Board consent or approved building plan, the court found on the totality of the evidence that she proved the counterclaim. The court found the exchange undisputed and held the plaintiff failed to prove his case on a balance of probabilities.
Legal principles established
#- Section 3(3) of the Law of Contract Act does not apply to oral contracts for the sale of land concluded before it came into force in 2003; part performance by the purchaser gives effect to the agreement.
- A plaintiff who receives money into his bank account and neither denies nor returns it is taken to have received it; production of pay-in slips is prima facie evidence of receipt.
- A person in long, open possession of land who has paid consideration is entitled to be registered as owner, the registered owner holding the land in trust for her.
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.The defendant's counterclaim is allowed; the defendant is declared entitled to be registered as owner of one acre of the demarcated parcel of land known as Plot No. 21 Sigowet/Chemalal Two Farm in Uasin Gishu
- 3.The plaintiff to take necessary steps to ensure the order is implemented
- 4.Each party to bear their own costs of the suit
- Jurisdiction invoked
- First-instance civil suit (plaint dated 12th August 2015) before the Environment and Land Court; no specific constitutional or statutory jurisdictional provision invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid Kipkurgat Too v Zibora Saina Seroney [2018] KEELC 467 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/467/eng@2018-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.