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ELCAllowedMachakos HCCC (Amended Originating Summons dated 16th June, 2008)· [2018] KEELC 3767 (KLR)

Prabhagauri Shashikant Maru v Martha Kalova Nzivo [2018] KEELC 3767 (KLR)

Environment and Land Court (High Court)
13 April 2018
OAO.A. Angote
1,927 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that an old, unstamped, unregistered land sale agreement still binds the seller who signed it and took the money.

What this practically means

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Executive summary

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The Plaintiff sued by Amended Originating Summons dated 16th June 2008 seeking an injunction, an order compelling the Defendant to transfer plot L.R. Machakos Municipality Block 1/458, a declaration that she is a bona fide purchaser for value, and costs. Her case was that she bought the land from the Defendant in 1981 for Kshs. 17,000 under an Assignment dated 30th September 1981, signed before her advocate (PW2), built two houses, and remained in possession. The Defendant denied selling the land, claiming the Council allocated it to her, that she dealt with imposters, and that she had merely allowed a Mr. Maru to occupy the house for fifteen years for Kshs. 17,000. The court found it undisputed that both parties signed the Assignment. Rejecting the Defendant's submission that the unstamped, unregistered document was inadmissible, the court held that failure to object to its production ended the admissibility question, and that unregistered instruments nonetheless bind the parties inter se, following Souza Figueiredo and Clarke v. Sodhoni. The court found the Defendant's lease story implausible, concluded that a valid contract under Section 3(3) of the Law of Contract Act existed and that the Defendant's interest passed to the Plaintiff. Allowing the summons, the court declared the Plaintiff bona fide purchaser for value, ordered the Defendant to execute the transfer within thirty days, failing which the Deputy Registrar was authorized to execute it, and awarded costs to the Plaintiff. Judgment delivered at Machakos on 13th April 2018 by O.A. Angote, Judge.

Key legal issues

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01

Admissibility and effect of an unstamped, unregistered Assignment

Holding

The Assignment is admissible and binding inter se; the Defendant signed it and received Kshs. 17,000, so her interest passed to the Plaintiff.

Reasoning

The document was produced without objection, so its admissibility was 'water under the bridge'. In any event, unregistered instruments affecting land may be received as evidence of the contract between the parties per Souza Figueiredo and related authority. The court could have allowed late stamping with penalties. The Assignment, signed before an advocate PW2, and payment of Kshs. 17,000, satisfied the writing requirement of Section 3(3) of the Law of Contract Act, and the Defendant's 15-year lease story was implausible given the amount paid without written lease.

p. 2
02

Whether the Plaintiff proved entitlement to the suit land

Holding

Yes, on a balance of probabilities the Plaintiff is entitled to the suit land and to compelled transfer.

Reasoning

The Defendant admitted signing the Assignment and receiving Kshs. 17,000 in 1981. Her claim that she merely leased the house to a Mr. Maru for fifteen years was rejected as inconceivable without a written lease. The Plaintiff was in possession and had built two residential houses. The Defendant, although registered proprietor, had assigned her interest by the valid inter partes contract and no third-party rights were implicated since she remained registered proprietor.

p. 3

Legal principles established

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  • An unregistered document affecting immovable property is still binding on the parties who signed it inter se and may be received in evidence of the contract between them, without binding third parties.
  • A validly signed document should not be outrightly rejected for want of stamping under Section 19 of the Stamp Duty Act without first allowing the party an opportunity to stamp it upon payment of penalties; and where produced without objection, it is properly before the court.

Court orders

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  1. 1.The Plaintiff is declared the bona fide purchaser for value of land known as Machakos Municipality Block 1/458
  2. 2.The Defendant to execute the Transfer and any other documents to effectuate the transfer of the parcel to the Plaintiff within thirty (30) days, and in default the Deputy Registrar of the court is authorized to execute such documents
  3. 3.The Defendant to pay the costs of the suit

Authorities

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Legislation

  • Stamp Duty ActSection 19
  • Law of Contract ActSection 3(3)
  • Kenya Registration of Titles OrdinanceSection 40 (proviso)

Cases cited (5)

  • Souza Figueiredo vs. Moorings Hotel Co. Ltd
    (1960) E.A 926
  • Clarke vs. Sodhoni
    (1963) E.A 107
  • Gos Venor vs. Rogan-Kemper
    (1974)
  • Bachelor's Bakery Ltd vs. Westlands Securities Ltd
    (1982) KLR 366
  • Chon Jeuk Suk & Another vs. E.J. Austin & Another
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction over the land dispute (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Prabhagauri Shashikant Maru v Martha Kalova Nzivo [2018] KEELC 3767 (KLR)", Case Analysis (2018). Machakos HCCC (Amended Originating Summons dated 16th June, 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3767/eng@2018-04-13

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