Peter Abiud Mukonyi v Kiptabut arap Kemei & another [2019] KEELC 3687 (KLR)
The bottom line
#A Kenyan land buyer who never completed payment or got Land Control Board consent lost his claim, recovering only his deposit refund.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff can sustain a claim against the 2nd defendant after abatement of the suit against the 1st defendant
The claim against the 2nd defendant cannot be sustained; there is no privity of contract and the plaintiff's claim lay against the 1st defendant
The suit against the 1st defendant abated for want of substitution within one year of his death on 17th April 2014. The plaintiff contracted with Martha Kemei, the 1st defendant's wife, who was not the registered owner and held no power of attorney, and she was never joined. There being no privity of contract between the plaintiff and the 2nd defendant, the claim against the latter could not stand.
Whether the 2nd defendant committed trespass
No; the plaintiff failed to prove possession and the 2nd defendant is the registered owner
Trespass to land requires an unjustifiable intrusion upon land in the possession of another. The plaintiff admitted he was not in occupation, having left to rent premises elsewhere, while the 2nd defendant had occupied, obtained Land Control Board consent and registered title since 2006. An owner in possession cannot trespass on his own land.
Whether constructive trust should be invoked where the purchase price was not fully paid and Land Control Board consent was not obtained
No; the court declined to invoke constructive trust on these facts though it acknowledged the Kitilit decision applies equity case-by-case
Both parties agreed the transaction concerned agricultural land and no Land Control Board consent was obtained, rendering it void under Section 6 of the Land Control Act. Although the Court of Appeal in Kitilit applied constructive trust and proprietary estoppel to such contracts, the court held that invoking equity here, where the plaintiff paid only Kshs.102,000 of Kshs.320,000, would not be just.
Legal principles established
#- A sale of agricultural land without Land Control Board consent is void under Section 6 of the Land Control Act
- An owner in possession of land cannot trespass on his own land
- A sale agreement for land signed by a person without a power of attorney from the registered owner cannot bind the owner
Court orders
#- 1.The plaintiff's suit against the 2nd defendant is dismissed with no orders as to costs
- 2.The refund of the purchase price deposited by the 1st defendant at the defendant's advocates' office be released to the plaintiff within 21 days
- Jurisdiction invoked
- Original civil jurisdiction over a claim for trespass, general damages and mesne profits relating to land; no constitutional or statutory basis expressly invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Abiud Mukonyi v Kiptabut arap Kemei & another [2019] KEELC 3687 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3687/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.