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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 3672 (KLR)

Samuel Kipkeny Yego v Luka Ngososei & 6 others [2019] KEELC 3672 (KLR)

Environment and Land Court of Kenya
9 April 2019
AOA. Ombwayo
2,484 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who sold land, took payment, and handed over possession could not evict the buyers, even without Land Control Board consent.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of title No. Uasin Gishu/Kormaet Scheme/120 measuring about 27.5 acres, sued seven defendants for a permanent injunction, a declaration and an order of eviction, alleging trespass and unlawful claims over his land. The defendants jointly defended and counterclaimed, asserting that the plaintiff sold and conveyed various portions to them between the early 1990s and 2000s under written sale agreements for value, that they took possession and developed the land, and that the plaintiff persistently refused to obtain Land Control Board consent to effect transfers. In the alternative they sought refund of the purchase price at current market rate, interest, and general and exemplary damages. The plaintiff denied ever selling the land, asserting the defendants were his lessees and drinking friends. At trial, the court found the plaintiff evasive and unreliable, and found that he had entered into sale agreements with the 2nd and 4th defendants, who paid the consideration and were given possession. Although no Land Control Board consent was obtained, the court held, applying established authorities on implied and constructive trusts over registered land, that a constructive trust arose and that the plaintiff was estopped from repudiating the sale. The plaintiff's suit was dismissed and the counterclaim allowed: the defendants were declared owners of the portions claimed, and the suit parcel was ordered registered in their names. The judgment is dated and was delivered at Eldoret on 9th April 2019 by A. Ombwayo, J.

Key legal issues

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01

Whether sale agreements were proved between the plaintiff and the defendants

Holding

The court found the plaintiff evasive and unreliable and held that sale agreements with the 2nd and 4th defendants were proved despite the lack of Land Control Board consent

Reasoning

The plaintiff testified the defendants were mere lessees paying small sums during drinking sprees, but produced no demand notice or lease evidence. The defendants produced sale agreements and testified they paid the agreed consideration, took possession and developed the land. The court preferred the defence evidence, finding the plaintiff evasive, and was satisfied contracts existed with the 2nd and 4th defendants for specific acreages.

p. 3
02

Whether the absence of Land Control Board consent under section 6 of the Land Control Act nullified the transactions

Holding

The lack of consent did not defeat the defendants' claims because a constructive trust relating to land subject to the Land Control Act is enforceable, and the plaintiff himself failed to obtain consent while giving possession

Reasoning

The plaintiff argued the agreements were nullities for want of Land Control Board consent. The court relied on authority that a constructive trust relating to land subject to the Land Control Act is enforceable. Since the plaintiff signed the agreements, received the purchase price and gave possession, a constructive trust arose in favour of the defendants and the plaintiff was estopped from repudiating the sale.

p. 3

Legal principles established

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  • The rights of a person in possession or occupation of land are equitable rights binding on the land, and absence of a reference to a trust in the title documents does not affect enforceability of the trust
  • The equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of the application of common law of England as modified by equity
  • A constructive trust relating to land subject to the Land Control Act is enforceable
  • A vendor who signs a sale agreement, receives payment and gives possession is estopped from repudiating the sale

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The defendants' counterclaim is allowed
  3. 3.A declaratory order that the defendants are the owners of the portions of land under Title No. Uasin Gishu/Kormaet Scheme/120
  4. 4.The said parcel of land be registered in the names of the defendants

Authorities

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Legislation

  • Land Control Act, Cap. 302, Laws of KenyaSection 6
  • Registered Land ActSection 126(1)
  • Registered Land ActSection 163

Cases cited (4)

  • Mwangi & Another Vs Mwangi
    (1986) KLR 328
  • Mutsonga Vs Nyati
    (1984) KLR 425
  • Kanji Vs Muthiora
    KLR 712
  • Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagiri
Jurisdiction invoked
Original civil jurisdiction over land disputes vested in the Environment and Land Court (suit concerning title No. Uasin Gishu/Kormaet Scheme/120); no specific provision cited in the judgment

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, "Samuel Kipkeny Yego v Luka Ngososei & 6 others [2019] KEELC 3672 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3672/eng@2019-04-09

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