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ELCPartially AllowedNot stated in the judgment excerpt (Plaint dated 17th November, 2011)· [2019] KEELC 2415 (KLR)

Richard Kyalo Makau v Peterson Mbuva Kioko & 2 others; Eastern Properties Limited (Interested Party) [2019] KEELC 2415 (KLR)

Environment and Land Court
12 July 2019
4,917 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued his nephews (the Defendants), claiming that between 1996 and 2003 he purchased a total of 35 acres of land from their father, Godfrey Kioko Makau (the deceased), through five written Sale Agreements, paying Kshs. 625,000 in money and school fees. He sought declarations that the Defendants, registered as proprietors of Mavoko Town Block 3/2241 on 30th June 2010, held 35 acres in trust for him, plus mesne profits. The Defendants denied the sale, contended the transactions were void for want of Land Control Board consent, and asserted first registration. The court found the five Agreements duly executed, attested and compliant with Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act; attesting witnesses and the clan secretary corroborated the sale, and the Defendants called no contrary evidence. The deceased died in June 2003, two months after the last Agreement, and no Letters of Administration were ever issued; the Defendants' registration before any grant amounted to intermeddling contrary to Sections 5 and 45 of the Law of Succession Act. Consequently, the Plaintiff could not be faulted for lacking Land Control Board consent. The court held that the purchase created a constructive trust in favour of the Plaintiff and that the Defendants held the 35 acres in trust for him. The Plaint was allowed: declarations of trust and a duty to transfer were issued, with the Deputy Registrar empowered to sign transfer documents upon sub-division in default, and the Defendants were ordered to pay the costs of the suit.

Key legal issues

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01

Whether the Plaintiff purchased 35 acres of the suit land from the deceased

Holding

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.

Reasoning

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.

p. 5
02

Whether the sale required Land Control Board consent and whether want of consent vitiates the transaction

Holding

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.

Reasoning

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.

p. 5
03

Whether a constructive trust arose from the sale

Holding

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.

Reasoning

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.

p. 6
04

Who is entitled to the suit land

Holding

The Plaintiff is entitled to 35 acres of the land formerly known as Plot No. 618, registered as Mavoko Town Block 3/2241.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.The Defendants to pay the costs of the suit.

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land ActSection 38(1)
  • Land Control ActSection 6(1)
  • Law of Succession ActSection 5
  • Law of Succession ActSection 45
  • Land Control RegulationsStatutory requirements (as pleaded in the Defence)

Cases cited (1)

  • Willy Kimutai Kitilit vs. Michael Kibet
    (2018) eKLR
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

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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, "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.