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ELCAllowedELC Appeal No. 95 of 2016· [2019] KEELC 1102 (KLR)

Edward Humphrey Kiriro Kanja v Samuel Njoroge Kiriro [2019] KEELC 1102 (KLR)

Environment and Land Court
17 October 2019
3,370 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court upheld a 1992 oral sale of family land, ruling the buyer's long possession and Land Control Board consent made the deal binding.

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 Nairobi against the judgment of Hon. E. Michieka, Ag. Principal Magistrate, in Kikuyu SPMCC No. 193 of 2008 delivered on 21st January 2014, which dismissed the appellant's suit seeking transfer of ¼ acre of LR No. Muguga/Kahuho/726 on the ground that the plaintiff had not proved his case on a balance of probability. The dispute concerned an oral 1992 sale of land between brothers, with the appellant alleging full payment of Kshs.100,000 and continuous occupation since 1992, and the respondent alleging an agreed price of Kshs.400,000 of which only Kshs.100,000 was paid. L. Komingoi J framed six issues covering limitation, the Law of Contract Act writing requirements, possession, the respondent's claim for additional consideration, the effect of the Land Control Board consent, and costs. The court found the cause of action arose in 2008 when the dispute over ownership crystallised, so the claim was not time barred; that the 1992 oral agreement was exempted from Section 3(3) by Section 3(7) of the Law of Contract Act and was binding given the appellant's part performance by taking possession; that the Land Control Board consent granted in January 1994 validated the sale and was not shown to be conditional on payment of any balance; and that the evidence of the respondent's witness Paul Githinji Kiriro was biased and should have been treated with caution. The court allowed the appeal, set aside the lower court judgment and decree, allowed the appellant's suit, and awarded the appellant costs of both the suit and the appeal.

Key legal issues

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01

Limitation - when the cause of action in a claim relating to an interest in land accrued

Holding

The cause of action was one founded on an interest in land which arose in 2008 when the dispute arose and the suit was filed; the claim was not time barred.

Reasoning

The appellant argued the cause of action was an action relating to an interest in land commencing in 2008, not a contract claim from 1992. The court agreed that the dispute over ownership arose when the respondent claimed the land after Telkom Kenya's interest in erecting a mast, and that the trial magistrate erred in failing to consider this, so the claim was not time barred.

p. 4
02

Whether the oral agreement of 1992 was exempted from Section 3(3) of the Law of Contract Act

Holding

Yes; the oral agreement of 1992 predates the 1st June 2003 amendment and Section 3(7) exempts it from Section 3(3) writing requirements, and part performance by taking possession made it binding.

Reasoning

The parties entered into an oral sale agreement in 1992. Section 3(7) of the Law of Contract Act excludes the application of Section 3(3) for contracts executed before 1st June 2003. Section 38(2) of the Land Act, 2012 gives the same position. The appellant took possession in part performance and remained in possession, so the oral agreement was binding.

p. 4
03

Effect of the Land Control Board consent

Holding

The consent obtained in January 1994 validated the sale; it was not shown to be conditional on payment of any balance, so the respondent could not demand additional consideration.

Reasoning

The respondent applied for and obtained Land Control Board consent in January 1994, indicating he intended to sell and had been paid. Nothing on the consent forms showed it was subject to payment of a balance. The claim for additional consideration was unfounded; the respondent only changed his mind when Telkom Kenya put up a mast on the property.

p. 4
04

Credibility of the respondent's witness Paul Githinji Kiriro

Holding

The trial court ought to have treated PW2's testimony with great caution because he was biased against the appellant, having had disputes with him at Kikuyu Police Station.

Reasoning

Paul Githinji Kiriro, a brother to both parties, testified that only Kshs.100,000 of Kshs.400,000 was paid. On cross-examination he admitted prior disputes with the appellant. The court found he was blinded by his disagreement with the appellant and that the trial magistrate failed to evaluate all the evidence, arriving at a wrong conclusion.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence tendered before the trial court and will not interfere with findings of fact unless they are based on no evidence, misapprehension of the evidence or wrong principles.
  • A sale of agricultural land within a land control area is void unless Land Control Board consent is obtained; where consent is granted, the transaction is validated.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the lower court dated 21st January 2014 set aside
  3. 3.Substituted with an order allowing the appellant's suit
  4. 4.Appellant to have costs of the suit in the lower court
  5. 5.Appellant to have costs of this appeal
On appeal from
Kikuyu Law Courts (Principal Magistrate's Court)
SPMCC No. 193 of 2008
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the subordinate courts in matters relating to land

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, "Edward Humphrey Kiriro Kanja v Samuel Njoroge Kiriro [2019] KEELC 1102 (KLR)", Case Analysis (2019). ELC Appeal No. 95 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1102/eng@2019-10-17

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