Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho ELC suit filed 11th April 2017· [2018] KEELC 2899 (KLR)

Mercy Chepchirchir v Charles Kipron [2018] KEELC 2899 (KLR)

Environment and Land Court
13 June 2018
1,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kericho court ordered a land seller to refund the full purchase price plus damages after he denied a sale he had already completed.

What this practically means

#

Executive summary

#
The plaintiff sued for specific performance of, or in the alternative a refund of the purchase price under, three sale agreements dated 2.8.2013, 10.10.2013 and 26.6.2014 for 0.64 of an acre of land parcel KERICHO/SILIBWET/2188 (or 288), at an agreed price of Kshs. 960,000 which she paid in full and took possession, fencing and cultivating the land. The defendant denied the sale, alleging a five-year lease at Kshs. 200,000 per year, and counterclaimed for a declaration that the contracts were illegal and for eviction, contending the land was matrimonial property sold without spousal consent and that no Land Control Board consent was obtained within six months under section 6(1) of the Land Control Act. The court found the sale proved on a balance of probabilities and, following the Court of Appeal's decision in Willy Kimutai Kitilit v Michael Kibet, held the defendant estopped from pleading want of Land Control Board consent since he had received the full purchase price and put the plaintiff in possession; his evidence of a lease was disbelieved. The counterclaim was dismissed with costs. Specific performance was declined because transferring part of the defendant's matrimonial home would present hardship given his wife's and son's change of position. Judgment was entered for the plaintiff for Kshs. 960,000 refund, Kshs. 300,000 general damages for breach of contract, costs, and interest at court rates until payment in full.

Key legal issues

#
01

Validity of the sale agreement for want of Land Control Board consent under section 6(1) of the Land Control Act

Holding

The defendant was estopped from relying on lack of LCB consent; the equitable doctrines of constructive trust and estoppel apply notwithstanding section 6(1), following Willy Kimutai Kitilit

Reasoning

The Court of Appeal in Willy Kimutai Kitilit held that equity, as a constitutional national value under Article 10(2)(b), requires the equitable doctrines of constructive trust and estoppel to apply to and supersede the Land Control Act where a transaction is void for lack of consent. That decision binds this Court. The defendant received the full purchase price and put the plaintiff in possession; his defence that he merely leased the land was disbelieved.

p. 3
02

Absence of spousal consent under section 28 of the Land Registration Act, 2012

Holding

The defendant's wife signed the sale agreements and was present at their signing; the spousal consent objection did not defeat the plaintiff's claim

Reasoning

The plaintiff testified that the defendant's wife Mary Cherono was present during the signing of the agreements, signifying her consent, and counsel for the plaintiff submitted that the wife signed the sale agreement. The court accepted the sale was genuine and did not accept the defendant's contrary account of a lease.

p. 1
03

Appropriate remedy: specific performance versus refund and damages

Holding

Specific performance was refused; the court instead ordered a refund of the purchase price plus general damages for breach of contract

Reasoning

Because the suit property forms part of the defendant's matrimonial home and his wife and son had back-tracked on the sale, transferring it would present hardship. The court considered a refund of the purchase price together with damages for breach the best way out.

p. 3

Legal principles established

#
  • A party who has put the purchaser in possession after receiving the full purchase price cannot rely on section 6(1) of the Land Control Act to invalidate the sale, and is estopped from pleading lack of Land Control Board consent

Court orders

#
  1. 1.Kshs. 960,000 being a refund of the purchase price
  2. 2.Kshs. 300,000 being general damages for breach of contract
  3. 3.Costs of this suit
  4. 4.Interest on (a) and (b) at court rates until payment in full

Authorities

#

Legislation

  • Land Control Actsection 6(1)
  • Land Control Actsection 7
  • Land Registration Act, 2012section 28 / 28(a)
  • Constitution of KenyaArticle 10(1)(b) and 10(2)(b)
  • Constitution of KenyaArticle 159(2)(e)
  • Constitution of KenyaSixth Schedule, section 7 (Transitional and Consequential Provisions)

Cases cited (5)

  • David Sironga Ole Tukai V Francis Arap Muge & 2 Others
    (2014) eKLR
  • Mwangi Maina & 87 Others V Davidson Mwangi Kagiri
    CA No. 26 & 27 of 2011 (Nyeri)
  • Kariuki V Kariuki
    (1983) KLR 225
  • PM & M.N.J V F.O.G & M.E.N
    Busia ELC Case No. 62 of 2013
  • Willy Kimutai Kitilit V Michael Kibet
    Civil Appeal No. 51 of 2015 (Eldoret)
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mercy Chepchirchir v Charles Kipron [2018] KEELC 2899 (KLR)", Case Analysis (2018). Kericho ELC suit filed 11th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2899/eng@2018-06-13

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