Francis Rioba Moseti v Nancy Motongori Mwita & another [2019] KEELC 887 (KLR)
The bottom line
#A Migori court upheld one written land sale agreement but cancelled a title the buyer obtained through an unwritten deal for extra land.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of PExhibit1 (the written agreement of 19th February 2013)
PExhibit1 satisfies section 3(3)(a) and (b) of the Law of Contract Act and, although it did not receive Land Control Board consent, it is valid and enforceable as a constructive trust with equitable estoppel
The agreement was signed by the parties and attested by witnesses, satisfying section 3(3) of the Law of Contract Act. Subsections (4) and (7) exempt its application in certain cases. Though consent under section 6(1) of the Land Control Act was not obtained, the Court of Appeal authority in William Kipsoi Sigei and Mwangi Maina establishes that constructive trusts relating to land subject to the Land Control Act are enforceable, binding DW1 who paid the purchase price.
Validity of the alleged second (verbal) agreement for a further 25 feet by 100 feet portion
The alleged second agreement was verbal, made after the commencement of section 3(3), and therefore falls outside the statutory exceptions and is a nullity at law
DW1 and defence witnesses conceded there was no written agreement or transfer documents for the alleged second sale of Kshs 450,000/-. Following Sumaria v Allied Industries and Peter Mbiri Michuki, a verbal contract for the disposition of an interest in land made after the commencement of section 3(3) cannot be enforced, and no exception under subsections (4), (5) or (7) applied.
Whether the defendants fraudulently procured title to the additional portion
Fraud was distinctly pleaded and proved; the certificate of title to the additional portion was procured on the ground of misrepresentation and cannot stand
The plaint contained particulars of fraud at paragraph 10. DW1 admitted PW1 signed transfer documents on the basis of PExhibit1 covering only one portion, yet obtained title to the additional portion via DExhibits 1-3 dated 18th February 2013. Applying Abiero, Ndolo, Kinyanjui Kamau and Vijay Morjaria, fraud must be distinctly pleaded and proved, which the court found satisfied, rendering the title suspect under section 26(1) of the Land Registration Act.
Legal principles established
#- A written sale of land agreement signed and attested as required by section 3(3) of the Law of Contract Act, though lacking Land Control Board consent, may be enforced through constructive trust and equitable estoppel
- A purported verbal sale of land made after commencement of section 3(3) of the Law of Contract Act cannot found a valid disposition of land
- Fraud must be specifically pleaded and distinctly proved, and a title obtained on the basis of misrepresentation is suspect
Court orders
#- 1.The sale of land agreement dated 19th February 2013 (PExhibit1) is declared enforceable, and the plaintiff's claim in respect thereof is disallowed with costs to the defendants
- 2.Judgment entered for the plaintiff against the defendants jointly and severally with regard to the additional portion of the suit land measuring 25 feet by 100 feet allegedly bought by way of the second agreement
- 3.Orders (ii) and (iii) of the plaint granted in respect of the additional portion (nullification of registration/transfer and eviction of the defendants from that portion)
- 4.Costs of the successful claim granted to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Migori County; suit transferred to this court on 23rd February 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Rioba Moseti v Nancy Motongori Mwita & another [2019] KEELC 887 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 16th October 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/887/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.