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ELCPartially AllowedNot stated in the judgment (plaint dated 16th October 2013)· [2019] KEELC 887 (KLR)

Francis Rioba Moseti v Nancy Motongori Mwita & another [2019] KEELC 887 (KLR)

Environment and Land Court of Kenya
9 October 2019
2,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The dispute concerned a 25 feet by 100 feet portion of land reference Bukira/Bwisaboka/1910, a subdivision of Bukira/Bwisaboka/1234 in Migori County. The original plaintiff, Francis Rioba Moseti, sued the defendants seeking nullification of a sale agreement of 19th February 2013 and an alleged second agreement of 23rd July 2013, reversion of registration, and eviction. Following his demise, Leah Boke Francis was substituted on 23rd February 2017, when the suit was transferred to the Migori Environment and Land Court. The plaintiff claimed he sold only a 25 by 100 feet portion for Kshs 150,000/-, while the first defendant contended she bought two portions under two agreements and obtained title to the whole 50 by 100 feet. The court condensed the issues into the enforceability of PExhibit1, the validity of the alleged second agreement, and entitlement to relief. It held PExhibit1 satisfied section 3(3) of the Law of Contract Act and, though it lacked Land Control Board consent, was enforceable through constructive trust and equitable estoppel; the claim to nullify it was accordingly disallowed with costs to the defendants. The alleged second agreement was verbal, made after commencement of section 3(3), and thus a nullity; fraud was distinctly pleaded and proved, rendering the title to the additional portion suspect. Judgment was entered for the plaintiff on the additional portion only, and costs of the successful claim were awarded to the plaintiff. Judgment was delivered at Migori on 9th October 2019 by G.M.A. Ongondo, Judge.

Key legal issues

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01

Enforceability of PExhibit1 (the written agreement of 19th February 2013)

Holding

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

Reasoning

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.

p. 3
02

Validity of the alleged second (verbal) agreement for a further 25 feet by 100 feet portion

Holding

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

Reasoning

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.

p. 4
03

Whether the defendants fraudulently procured title to the additional portion

Holding

Fraud was distinctly pleaded and proved; the certificate of title to the additional portion was procured on the ground of misrepresentation and cannot stand

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the successful claim granted to the plaintiff

Authorities

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Legislation

  • Law of Contract Act (Cap 23), Revised Edition 2012 (2002)section 3(3), (4), (5) and (7)
  • Land Control Act (Cap 302)section 6(1)
  • Land Registration Act, 2016 (2012)section 26(1)
  • Auctioneers Act (Cap 526)mentioned in section 3(4) proviso
  • Constitution of Kenyanot specified

Cases cited (10)

  • Peter Mbiri Michuki v Samuel Mugo Michuki
    (2014) eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar and another
    (2000) eKLR
  • Kinyanjui Kamau v George Kamau
    (2015)
  • Kuria Kiarie and 2 others v Sammy Magera
    (2018) eKLR
  • Great Lakes Company (U) Limited v Kenya Revenue Authority
    (2009) KLR 720
  • William Kipsoi Sigei v Kipkoech Arusei and another
    (2019) eKLR
  • Mwangi Maina and 87 others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Sumaria and another v Allied Industries Ltd
    (2007) 2 KLR 1
  • Abiero v Thabiti Finance Co Ltd and another
    (2001) KLR 496
  • Ndolo v Ndolo
    (2008) KLR (G & F) 742
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.