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ELCDismissedE.L.C.A. No 4 of 2014 (Formerly Kerugoya E.L.C.A 18 of 2014)· [2018] KEELC 2320 (KLR)

Sammy Njeru Kivuti Rupia v Lydia Wangui Maina (as Legal Representative of Daniel Maina Kibage (Deceased) [2018] KEELC 2320 (KLR)

Environment and Land Court of Kenya at Embu
26 July 2018
YAY.M. Angima
2,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Embu against the judgment of Chief Magistrate M.W. Wachira delivered on 9 January 2014 in Embu CMCC No. 81 of 1988, in which judgment was entered for the plaintiff against the defendant in the sum of Kshs 301,650/-, being a refund of the purchase price and incidental costs (Kshs 93,000/-) plus compensation for developments (Kshs 203,650/-), with interest at court rates from the date of filing suit. The dispute concerned a 1983 agreement for the sale of Title No. Kyeni/Kigumo/911 for Kshs 75,000/-; the trial court declined to order transfer because no Land Control Board consent was obtained, but awarded the refund and compensation. On appeal, the appellant argued only one ground: that the transaction was null and void under section 6(1) of the Land Control Act, and it was illegal for the trial court to compensate the buyer for developments on a void transaction, relying on David Sironga Ole Tukai v Francis Arap Muge. The respondent defended the judgment, arguing the seller could not keep both the money and the land. Reviewing the conflicting Court of Appeal authorities, the court followed the more recent decision in Willy Kimutai Kitilit v Michael Kibet, which approved Macharia Mwangi and held that equitable principles of constructive trust and proprietary estoppel apply to land subject to the Land Control Act, and that courts have discretion to award damages in equity even where the transaction is void for want of consent. The court found the trial court's judgment just and equitable and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether compensation for developments can be awarded on a land sale void for want of LCB consent

Holding

Yes - the court may exercise judicial discretion to award damages in equity notwithstanding the voidness of the transaction

Reasoning

The court noted two conflicting lines of Court of Appeal authority: Ole Tukai excluding equity, and Macharia Mwangi/Willy Kimutai applying constructive trust and proprietary estoppel based on Article 10(b) of the Constitution. Following the most recent decision, Willy Kimutai, the court held that equitable doctrines apply to land subject to the Land Control Act, and damages may be awarded where specific performance is not ordered.

p. 3
02

Duty of a first appellate court

Holding

The appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle v Associated Motor Boat Co. Ltd, the court restated that a first appellate court is not bound by the trial court's findings of fact, particularly where the trial court failed to account for particular circumstances or probabilities, but must make due allowance for not having observed witness demeanour.

p. 2

Legal principles established

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  • A first appellate court must re-look at the entire evidence before the trial court, make its own evaluation and draw its conclusions thereon.
  • A court has judicial discretion to award damages in equity (constructive trust/proprietary estoppel) even where a land transaction is void for lack of Land Control Board consent.

Court orders

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  1. 1.All grounds of appeal disallowed
  2. 2.The appeal dismissed with costs to the Respondent

Authorities

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Legislation

  • Land Control Act (Cap 302)section 6(1)
  • Land Control Act (Cap 302)section 7
  • Land Control Act (Cap 302)section 22
  • Constitution of Kenya 2010Article 10(b)

Cases cited (5)

  • David Sironga Ole Tukai Vs Francis Arap Muge & 2 Others
    [2014] eKLR, Nairobi Civil Appeal No. 76 of 2014
  • Selle Vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Kariuki v. Kariuki
    [1983] KLR 225
  • Macharia Mwangi Maina & 57 Others v. Davidson Mwangi Kagiri
    Nyeri Civil Appeal Nos 26 and 27 of 2011
  • Willy Kimutai Kitilit v. Michael Kibet
    Eldoret Civil Appeal No. 51 of 2015
On appeal from
Chief Magistrate's Court at Embu
Embu CMCC No. 81 of 1988
Jurisdiction invoked
First appellate jurisdiction over appeals from the Chief Magistrate's Court in land and environment matters

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, "Sammy Njeru Kivuti Rupia v Lydia Wangui Maina (as Legal Representative of Daniel Maina Kibage (Deceased) [2018] KEELC 2320 (KLR)", Case Analysis (2018). E.L.C.A. No 4 of 2014 (Formerly Kerugoya E.L.C.A 18 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2320/eng@2018-07-26

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