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ELCDismissedCase No 208 of 2012· [2018] KEELC 981 (KLR)

Eunice Nyokabi v James Chepyator Kendagor & another [2018] KEELC 981 (KLR)

Environment and Land Court
30 October 2018
DOD. O. Ohungo
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land buyer's claim because she could not produce a written, signed sale agreement, so the registered owner kept the title.

What this practically means

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Executive summary

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The plaintiff sued, claiming she bought Baringo/Perkerra 101/791 from the 1st defendant sometime between 2000 and 2007, and that the defendants fraudulently transferred it to the 2nd defendant on 20th June 2007. She sought cancellation of the 2nd defendant's title and its transfer to her. At hearing she proceeded only against the 2nd defendant, the 1st defendant having died. She testified she paid the full purchase price under a written sale agreement lost during the 2008 tribal clashes, obtained Land Control Board consent in October 2007, and remained in possession. The 2nd defendant testified he bought the property on 1st December 2005, obtained consent in March 2006 and was issued title on 20th June 2007, though he admitted under cross-examination that he had no written agreement and that the plaintiff occupied the plot with a permanent house. The court framed two issues: whether a sale agreement existed between the plaintiff and the 1st defendant, and whether the plaintiff was entitled to the reliefs. Applying Section 3(3) of the Law of Contract Act, the court found the plaintiff had not proved a written, signed and attested contract, and that the Land Control Board consent did not suffice. No fraud against the 2nd defendant was proved; his registered title under sections 25 and 26 of the Land Registration Act was indefeasible. No trust could be presumed. The suit was dismissed with costs to the 2nd defendant.

Key legal issues

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01

Existence of a written sale agreement between plaintiff and 1st defendant

Holding

No sale agreement was proved; the plaintiff did not produce the agreement, could not fix its date, and called no witnesses

Reasoning

The plaintiff lost the agreement during 2008 tribal clashes, could not give the date, month or year of execution, and named no witnesses. The plaint's averment that the purchase was 'between the year 2000 and 2007' undermined her case. The Land Control Board consent produced did not satisfy the writing, signature and attestation requirements of Section 3(3) of the Law of Contract Act.

p. 3
02

Whether the 2nd defendant's registered title could be cancelled

Holding

The title is indefeasible under sections 25 and 26 of the Land Registration Act; no fraud was proved

Reasoning

Fraud was pleaded but not proved; the plaintiff even disclaimed any accusation against the 1st defendant. The argument that the 1st–2nd defendant sale lacked a written agreement did not avail because Section 3(3) bars suits brought upon such contracts, and the 2nd defendant filed no suit; he was already registered owner when the suit was filed.

p. 3
03

Whether the plaintiff acquired binding possessory/equitable rights or a trust

Holding

Mere occupation without proof of a contract cannot create rights binding on the registered proprietor; no trust established

Reasoning

Trust is a matter of evidence and is never presumed except out of absolute necessity. Having abandoned her claim against the 1st defendant or his estate, the plaintiff deprived the court of the means to probe the alleged contract, leaving no basis to found a trust.

p. 3

Legal principles established

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  • A suit founded on a contract for disposition of an interest in land must be supported by a written contract signed by all parties and attested by a witness; a Land Control Board consent does not satisfy this requirement
  • Section 3(3) of the Law of Contract Act bars suits to enforce non-compliant contracts but cannot be used to disturb a subsisting registered title
  • Whether or not a trust exists is a matter of evidence; courts never presume a trust except in case of absolute necessity
  • A registered proprietor's title under sections 25 and 26 of the Land Registration Act can only be challenged on fraud or misrepresentation to which he is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's case is dismissed with costs to the 2nd defendant

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Registration ActSections 25 and 26
  • Auctioneers ActCap. 526 (referred in Section 3(3) proviso)

Cases cited (4)

  • Mawji –vs- US International University & Another
    [1976 – 80] 1 KLR 229
  • Mwangi & Another –vs- Mwangi
    [1986] KLR 328
  • Dorcas Indombi Wasike v Benson Wamalwa Khisa & another
    [2010] eKLR
  • Mbothu & 8 Others vs Waitimu & 11 Others
    [1986] KLR 171
Jurisdiction invoked
First-instance civil suit by plaint (Environment and Land Court); no specific provision invoked

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, "Eunice Nyokabi v James Chepyator Kendagor & another [2018] KEELC 981 (KLR)", Case Analysis (2018). Case No 208 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/981/eng@2018-10-30

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