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ELCDismissedELC Appeal No.122 of 2017 (Formerly Civil Appeal No.223 of 2015 at Nairobi)· [2018] KEELC 4274 (KLR)

Njeri Njoroge v Joseph Maina Gichuhi & another [2018] KEELC 4274 (KLR)

Environment and Land Court
2 March 2018
LGL. Gacheru
6,191 words in judgment
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The bottom line

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Kenya's Environment and Land Court upheld a 1999 land sale, ruling a family member who concealed it during succession created a trust binding her to honour the buyer's quarter-acre.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Thika from the judgment of Hon. J. W. Onchuru, Principal Magistrate, in Thika CMCC No.991 of 2008, in which Njeri Njoroge had sued for vacant possession of LR.No.Chania/Ngorongo/633, alleging fraud and wrongful possession by Joseph Maina Gichuhi, who had bought a ¼ acre from Rukungu Maina in 1999. The trial court dismissed her suit and held that the 1st Respondent was entitled to a ¼ acre. On appeal, the Appellant raised ten grounds including lack of Land Control Board Consent, lack of capacity by the 2nd Respondent (the land being estate property), and the award of unpleaded relief. The Respondents opposed, arguing inter alia the appeal required leave, and that the 1st Respondent was a bona fide purchaser protected by an implied/constructive trust. L. Gacheru J held that the order appealed was a decree following full hearing, so the appeal lay as of right under Section 65(1)(b) of the Civil Procedure Act. On the merits, applying Selle v Associated Mobi Boat Co. and related principles, the court found the family, including the Appellant, sanctioned the sale; the 2nd Respondent had capacity as a beneficiary; the 1st Respondent was a bona fide purchaser for value; the Appellant created a constructive trust by excluding the Respondents from the succession cause; and, following Macharia Mwangi Maina, no Land Control Board Consent was required where a constructive trust exists over agricultural land. The unpleaded award was justified under the Appellant's own general prayer (c). The appeal was dismissed entirely with costs to the Respondents in both courts.

Key legal issues

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01

Right of appeal without leave

Holding

The order appealed was a decree from a final determination, so the appeal lay as of right under Section 65(1)(b) of the Civil Procedure Act

Reasoning

The court distinguished orders under Section 75 and Order 43, which concern orders issued after determination of applications. The order under challenge issued after a full hearing was a decree, attracting an automatic right of appeal. The Appellant therefore needed no leave to file the Memorandum of Appeal.

p. 6
02

Capacity of the 2nd Respondent to sell

Holding

The 2nd Respondent, as dependant and beneficiary of the estate, had family blessing to sell his expected ¼ acre share

Reasoning

The court found the family of Mwangi Kirae, including the Appellant, had agreed that the 2nd Respondent could sell his share of inheritance. The Appellant's failure to call the crucial witnesses to the sale agreement supported the inference that their evidence would have been adverse to her. The Appellant concealed material facts in the succession proceedings.

p. 6
03

Bona fide purchaser for value

Holding

The 1st Respondent proved he was a bona fide purchaser for value entitled to the ¼ acre

Reasoning

The sale agreement of 1999 was witnessed by several persons; the 2nd Respondent testified and confirmed the sale in dire financial need, and the Appellant did not object at the time. The 1st Respondent took possession from 1999 and the Appellant only sued after obtaining confirmation of grant.

04

Constructive trust

Holding

The Appellant created a constructive trust in favour of the 1st Respondent

Reasoning

Having known of the purchase and occupation since 1999, the Appellant filed a succession cause excluding the Respondents and became sole beneficiary of the whole property. Equity imposes a constructive trust to prevent unjust enrichment.

p. 7
05

Land Control Board Consent

Holding

Consent was not required where a constructive trust arose over the agricultural land

Reasoning

Following Macharia Mwangi Maina, since the Appellant created a constructive trust in favour of the 1st Respondent who had paid the purchase price, the statutory consent requirement did not invalidate the transaction.

p. 7
06

Pleadings and orders granted

Holding

The award of the ¼ acre answered the Appellant's own prayer (c) for any other relief the court deemed fair and just, and was lawful

Reasoning

Though the 1st Respondent had not counterclaimed for the ¼ acre, parties are bound by pleadings; the trial Magistrate was anchored by the Appellant's general prayer and Section 3A of the Civil Procedure Act, so the order was just and necessary in the circumstances.

p. 7

Legal principles established

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  • An appeal from a decree following full hearing and final determination lies as of right and does not require leave under Section 75 and Order 43
  • Allegations of fraud must be strictly proved to a standard higher than mere balance of probabilities
  • Failure to call a crucial witness permits an inference that the witness's evidence would have been adverse to the party's case
  • Where a constructive trust is created over agricultural land, Land Control Board Consent is not required

Court orders

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  1. 1.Appeal dismissed entirely with costs to the Respondents both at the lower court and on appeal
  2. 2.Upheld the decision of the trial court that the 1st Respondent is entitled to a ¼ acre out of LR.No.Chania/Ngorongo/633 and that the Appellant should facilitate the survey process

Authorities

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Legislation

  • Civil Procedure ActSection 65(1)(b)
  • Civil Procedure ActSection 75(1)
  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 79(C)
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 43 Rule 1(i)
  • Civil Procedure RulesOrder 43 Rule 3
  • Law of Succession ActSection 29
  • Land Control ActSection 6(1)

Cases cited (10)

  • Hirani Ngaithe Githire Vs Wanjiku Munge
    (1979) KLR 50
  • Mbogo Vs Shah & Another
    (1968) EA 93
  • Peter Nyaga Murake Vs Joseph Mutunga
    CA No.86 of 2015 at Nairobi
  • Josephat Muchiri Muiruri & Another Vs Abdi Adan
    (2015) eKLR
  • Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagiri
    (2014) eKLR
  • Selle Vs Associated Mobi Boat Co.
    (1968) EA 123
  • Abdul Hameed Saif Vs Ali Mohamed Sholah
    [1955] 22 EACA 270
  • Ocean Freight Shipping Company Ltd Vs Oakdale Commodities Ltd
    Civil App.No.198 of 1995
  • Urmilla W/O Mahendra Shah Vs Barclays Bank International Ltd & Another
    (1979) KLR 76
  • Bukenya Vs Republic
    (1972) EA 549
On appeal from
Chief Magistrate's Court at Thika
Civil Suit No.991 of 2008
Jurisdiction invoked
Section 65(1)(b) and Section 78 of the Civil Procedure Act (first appeal on facts and law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Njeri Njoroge v Joseph Maina Gichuhi & another [2018] KEELC 4274 (KLR)", Case Analysis (2018). ELC Appeal No.122 of 2017 (Formerly Civil Appeal No.223 of 2015 at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4274/eng@2018-03-02

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