Mercy Chepchirchir v Charles Kipron [2018] KEELC 2899 (KLR)
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
#Key legal issues
#Validity of the sale agreement for want of Land Control Board consent under section 6(1) of the Land Control Act
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
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.
Absence of spousal consent under section 28 of the Land Registration Act, 2012
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
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.
Appropriate remedy: specific performance versus refund and damages
Specific performance was refused; the court instead ordered a refund of the purchase price plus general damages for breach of contract
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.
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.Kshs. 960,000 being a refund of the purchase price
- 2.Kshs. 300,000 being general damages for breach of contract
- 3.Costs of this suit
- 4.Interest on (a) and (b) at court rates until payment in full
- 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.