Richard Kyalo Makau v Peterson Mbuva Kioko & 2 others; Eastern Properties Limited (Interested Party) [2019] KEELC 2415 (KLR)
The bottom line
#A Kenyan court confirmed that buyers who fully pay for land keep their rights even after the seller dies, ordering the seller's family to transfer the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff purchased 35 acres of the suit land from the deceased
Yes. Five executed and attested Sale Agreements dated between 15th June 1996 and 12th April 2003, plus written acknowledgements of payment, proved the sale on a balance of probability.
The Agreements were produced in evidence and most attesting witnesses, including family members and the clan secretary, testified supporting the sale. The Defendants called no family or clan member to dispute the Agreements and produced no evidence of forgery. The deceased acknowledged receipt of the full purchase price, and how the proceeds were used was irrelevant. DW1 admitted the land belonged to their late father.
Whether the sale required Land Control Board consent and whether want of consent vitiates the transaction
Although agricultural land transfers require Board consent under Section 6(1) of the Land Control Act, the plaintiff cannot be faulted for not obtaining consent because the deceased died within six months of the last Agreement and no Letters of Administration were ever issued.
The consent obligation could only arise after administration of the estate. The Defendants registered themselves as proprietors on 30th June 2010 before obtaining Letters of Administration, which the court found to be intermeddling with the estate contrary to Sections 5 and 45 of the Law of Succession Act. The registration was therefore tainted and the defence of want of Land Control Board consent could not stand.
Whether a constructive trust arose from the sale
Yes. Upon purchase of the land, a constructive trust was created between the deceased and the Plaintiff, and the Defendants, having been wrongfully registered, hold the 35 acres in trust for the Plaintiff.
Relying on equitable doctrine and learned texts, the court held that a vendor under a specifically enforceable contract holds the property on constructive trust for the purchaser, who acquires an equitable interest immediately. The Plaintiff paid the full purchase price and was awaiting the appointment of the deceased's legal representatives when the Defendants unlawfully had the land registered in their own names, unjustly enriching themselves.
Who is entitled to the suit land
The Plaintiff is entitled to 35 acres of the land formerly known as Plot No. 618, registered as Mavoko Town Block 3/2241.
The Plaintiff proved his case on a balance of probability through the five Sale Agreements, acknowledgements of payment, possession and development of the land, and family and clan testimony. The Defendants' registration before obtaining a grant was intermeddling, and their transfers to Interested Parties were contrary to Section 45 of the Law of Succession Act.
Legal principles established
#- A contract for the disposition of an interest in land that is in writing, signed by all parties and attested by witnesses complies with Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act.
- Registration of a deceased person's land in favour of his children before obtaining Letters of Administration constitutes intermeddling in the estate and is contrary to the Law of Succession Act.
- A vendor under a specifically enforceable contract for sale holds the land on constructive trust for the purchaser, who acquires an equitable interest immediately.
- Where the vendor died before the lapse of six months from the contract and no administration of the estate has occurred, the plaintiff cannot be faulted for failing to obtain Land Control Board consent, and the defence of want of consent fails.
Court orders
#- 1.A declaration that the Defendants hold the portion of 35 acres of land in land parcel number Mavoko Town Block 3/2241 in trust for the Plaintiff.
- 2.A declaration that the Defendants are under a duty by reason of the trust to transfer the 35 acres of the suit property to the Plaintiff, and in default the Deputy Registrar of the court to sign transfer documents in respect of the 35 acres upon sub-division of the land.
- 3.The Defendants to pay the costs of the suit.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Plaint filed in the court under the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kyalo Makau v Peterson Mbuva Kioko & 2 others; Eastern Properties Limited (Interested Party) [2019] KEELC 2415 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt (Plaint dated 17th November, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2415/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.