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ELCDismissedNot stated in judgment· [2019] KEELC 3371 (KLR)

Daniel Simatwa Chemorik v Thomas Naibei & another [2019] KEELC 3371 (KLR)

Environment and Land Court
16 May 2019
2,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret land court confirmed that a signed, witnessed land sale agreement binds the seller, who cannot later demand more money.

What this practically means

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Executive summary

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By a plaint dated 1st March 2017 the plaintiff sought a declaration that he was the rightful owner of Plot no.94 Kokwo Co-operative Society Chorlim (66), rectification of the register, and a permanent injunction restraining the 1st defendant from interfering with his possession. The plaintiff testified that he bought the land through the 2nd defendant's co-operative society in 1998 and merely leased it to the 1st defendant from 2009. The 1st defendant produced a written sale agreement dated 12th October 2007, receipts, the allotment letter and demand letters, and his witnesses confirmed drafting and witnessing the sale agreement. Following a complaint to the Assistant-chief, a baraza meeting proposed fresh terms whereby the 1st defendant would pay Ksh 1,000,000 or retain 3½ acres and surrender 1½ acres to the plaintiff. The court framed two issues: whether a sale agreement existed and whether the plaintiff was entitled to the prayers sought. It found the written, signed and witnessed agreement valid, noting the plaintiff admitted the signatures and ID numbers were his, held no proof of any lease, possessed no original documents, and confirmed the 1st defendant paid the loan to the 2nd defendant. The chief's imposed fresh terms were held illegal. The plaintiff's Land Control Act argument was distinguished because the land remained registered in the 2nd defendant's name and the plaintiff held no title. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether a valid sale agreement existed between the plaintiff and the 1st defendant

Holding

A valid written and witnessed sale agreement existed; the plaintiff's claim of a lease was unsubstantiated

Reasoning

The agreement dated 12th October 2007 identified the parties, their ID numbers, the parcel and the price, and bore signatures of the plaintiff, his wife and witnesses. The plaintiff admitted the signatures and ID numbers were his, held no lease documentation, and the defendant possessed the original documents, which the court found were surrendered upon sale. The plaintiff also confirmed the 1st defendant paid the loan to the 2nd defendant.

p. 4
02

Whether the chief's meeting could impose fresh sale terms

Holding

The chief had no power to force parties into new terms of sale on grounds of increased land value

Reasoning

At the chief's meeting the 1st defendant was asked to pay Ksh 1,000,000 for the entire 5 acres or take 3½ acres leaving 1½ acres to the plaintiff. The court held this was illegal, equating the chief's conduct to a court forcing fresh terms, and found it demonstrated the plaintiff had sold the land but wished to renege and demand more money, which complicated his case.

p. 4
03

Whether the Land Control Board consent requirement rendered the transaction void

Holding

The consent rationale did not apply because the seller (2nd defendant) still held title and the plaintiff had no title deed in his name

Reasoning

Counsel for the plaintiff relied on David Sironga Ole Tukai v. Francis Arap Muge on the voidness of unconsented transactions in agricultural land. The court distinguished it on the facts: the land remained registered in the name of the 2nd defendant, the plaintiff delayed clearing arrears and never obtained a title deed, so the Court of Appeal's rationale for requiring consent had no application where the seller did not have title.

p. 4

Legal principles established

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  • Parties are bound by the terms of a contract they have freely entered into and signed
  • The Land Control Act consent requirement does not apply where the seller did not have title to the land

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Contract ActSection 3(3)
  • Land Control ActSection 6(i)
  • Constitution of KenyaArticle 40

Cases cited (5)

  • David Sironga Ole Tukai v. Francis Arap Muge & 2 Ors
    (2014) eKLR
  • Wamwea v. Catholic Diocese of Murang'a Registered Trustees
    (2003) eKLR
  • Nelson Kivuvani v. Yuda Komora & Anor
    Nairobi HCC NO. 956 of 1991
  • D & C Builds v. Sidney Rees
    (1966) 2 QB 617
  • Total Kenya Ltd v. Joseph Ojiem
    NRB HCC NO.1243 OF 199
Jurisdiction invoked
Original civil jurisdiction over a land dispute (plaint dated 1st March 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, "Daniel Simatwa Chemorik v Thomas Naibei & another [2019] KEELC 3371 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3371/eng@2019-05-16

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