Stephen Bartonjo Rotich v Baliat & 2 others [2019] KEELC 3319 (KLR)
The bottom line
#A Kenyan court ruled that land sold without a registered power of attorney can be reclaimed by the owner, leaving buyers to chase the fraudulent seller for refunds.
What this practically means
#Executive summary
#Key legal issues
#Authority to sell land
The 1st defendant had no valid registered power of attorney to sell the plaintiff's land; the authority to sell was insufficient and the transaction was suspect
The plaintiff admitted signing the authority to sell but denied selling the land. The court held that authorization to deal in land requires a specific, registered power of attorney. Anomalies - unpaid survey fees by the 1st defendant, incomplete subdivision, unregistered sketch map, and monies not paid to the plaintiff - rendered the purported transaction suspect.
Privity of contract and constructive trust
There was no privity of contract between the plaintiff and the 2nd and 3rd defendants, hence no constructive trust arose
The plaintiff did not enter into any agreement with the 2nd and 3rd defendants, did not put them in possession and did not receive the purchase price; the 1st defendant admitted still holding a substantial part of the purchase price. Constructive trust requires conduct by the owner consistent with such an intention, which was absent.
Entitlement to specific performance
Specific performance was unavailable because no valid enforceable contract existed and essential terms (full payment of purchase price) were not performed
Relying on Chitty on Contract and the Court of Appeal in Gurdev Singh Birdi, the court held the equitable remedy rests on a valid contract and on the claimant having performed essential terms. The purchase price was unpaid and the transaction lacked Land Control Board consent, with a caution lodged on the land.
Remedy of the 2nd and 3rd defendants
The 2nd and 3rd defendants' remedy lies against the 1st defendant who sold land he had no authority to sell and who is still holding their money
Having paid monies to the 1st defendant rather than the plaintiff, and having bought from a seller without authority, the 2nd and 3rd defendants were directed to seek redress from the 1st defendant. The court accordingly dismissed their counterclaim and granted the plaintiff possession.
Legal principles established
#- A person authorizing another to deal in land on his behalf must grant a specific power of attorney to deal in land which must be registered
- Specific performance is founded on the existence of a valid and enforceable contract and will be refused where the contract suffers from a defect making it invalid or unenforceable
- A purchaser seeking specific performance must show performance of all essential terms undertaken, including payment of the purchase price
Court orders
#- 1.A declaration that the plaintiff is the absolute registered owner of all the parcel of land known as LR. NO. 9471 and 8337
- 2.The defendants to give vacant possession of the suit land within 30 days failure of which eviction to issue
- 3.Defendants to pay costs of the suit
- Jurisdiction invoked
- Original civil suit on land ownership and trespass; no constitutional or statutory jurisdictional provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Bartonjo Rotich v Baliat & 2 others [2019] KEELC 3319 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 27th January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3319/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.