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ELCAllowedELC Appeal No. 4 of 2017 (Formerly Nairobi ELC Appeal No. 3 of 2016)· [2020] KEELC 459 (KLR)

Kilonzo Wambua & another v Mosoi P. Parkut [2020] KEELC 459 (KLR)

Environment and Land Court
25 November 2020
COChristine Ochieng
3,225 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ruled that land buyers who paid and occupied land keep their rights even without Land Control Board consent.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kajiado against the judgment of Hon. E. A. Mbicha, Resident Magistrate, delivered on 15th January 2016 in Kajiado PMCC No. 282 of 2010, which had dismissed the Appellants' suit seeking a declaration that sale agreements were valid, a permanent injunction, and specific performance in respect of 16 acres out of Kajiado/Kaputiei Central/677. The trial court had held the suit statute barred, that the sale agreements were not proved, and that the transactions were void for lack of Land Control Board consent. Allowing the appeal, Christine Ochieng J framed two issues: whether the Appellants were entitled to the 16 acres, and whether the appeal was merited. The court found the Respondent had signed the agreements, admitted receiving monies from the Appellants, and showed them the portions they occupied. It held that limitation for land claims is twelve years under section 7 of the Limitation of Actions Act and that time ran only from 17th July 1998 when the Respondent obtained title. Following the Court of Appeal in Willy Kimutai Kitilit v Michael Kibet and Macharia Mwangi Maina v Davidson Mwangi Kagiri, the court held the lack of Land Control Board consent did not defeat the transactions, which were enforceable through the doctrine of constructive trust, creating an overriding interest. The court set aside the judgment and decree of the lower court, directed the Respondent to transfer the 16 acres to the Appellants within 90 days, failing which the Deputy Registrar would execute the transfer forms, and awarded costs of the appeal to the Appellants.

Key legal issues

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01

Limitation period applicable to a claim founded on agreements for sale of land

Holding

The applicable period is twelve years, not six, and time began to run on 17th July 1998 when the Respondent obtained his title.

Reasoning

The trial court applied a six-year limitation period as for general contracts. The court held that a claim over land falls under section 7 of the Limitation of Actions Act providing a twelve-year period, and that where the subject of a contract is land, time begins to run only when the vendor acquires a Certificate of Title. Since the Respondent obtained title in 1998 and entered the agreements before that, the suit was not statute barred. The trial court's contrary finding was an error in law and fact.

p. 4
02

Effect of absence of Land Control Board consent on the sale agreements

Holding

The transaction is enforceable despite lack of consent, by virtue of the doctrine of constructive trust.

Reasoning

Relying on the binding Court of Appeal decisions in Willy Kimutai Kitilit v Michael Kibet and Macharia Mwangi Maina v Davidson Mwangi Kagiri, the court held that constructive trust and proprietary estoppel supersede the Land Control Act where a transaction lacks consent, especially where the party resisting enforcement never applied for consent. The Respondent admitted receiving monies, showing the Appellants their portions and leaving them in occupation, creating part performance and a trust amounting to an overriding interest.

p. 4
03

Whether the trial magistrate erred in disregarding the Respondent's admissions and the executed agreements

Holding

The trial court erred by disregarding the Respondent's admission of receipt of monies, showing the Appellants the land, the signed agreements, and the fact that limitation was never pleaded.

Reasoning

The Respondent admitted in evidence receiving Kshs. 50,000 from the 2nd Appellant and Kshs. 40,000 from the 1st Appellant, admitted showing them where to settle, and never produced the lease agreement he alleged. The trial court nonetheless disregarded these admissions and the undisputed handwritten agreements. The first-instance court found this disregard of important evidence amounted to error, justifying interference with the judgment below.

p. 3

Legal principles established

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  • In land-sale disputes, time under the Limitation of Actions Act runs from when the vendor obtains a Certificate of Title.
  • A transaction void for lack of Land Control Board consent may nonetheless be enforced through the doctrine of constructive trust, which prevails over the Land Control Act.

Court orders

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  1. 1.Judgement and Decree by Honourable Mr. E A. Mbicha Resident Magistrate delivered on 15th of January, 2016 in Kajiado Principal Magistrates Court Civil Case No. 282 of 2010 be and is hereby set aside.
  2. 2.The Respondent be and is hereby directed to effect transfer of the sixteen (16) acres of land out of land parcel number Kajiado/Kaputiei Central/677 to the Appellants, within the next 90 days from the date hereof, failure of which the Deputy Registrar, Environment and Land Court Kajiado will execute the said Transfer Forms.
  3. 3.The costs of the Appeal are awarded to the Appellant.

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Control ActSection 6(1)(a)
  • Land ActSection 38(2)
  • Limitation of Actions ActSection 7
  • Auctioneers ActCap. 526
  • Land Disputes Tribunal Actrepeal referred to
  • Constitution of KenyaArticle 10(2)(b)

Cases cited (5)

  • Global Vehicles Kenya Limited v Lenana Road Motors
    (2015) eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • William Kipsoi Sigei v Kipkoech Arusei & John Tunge
    (2019) eKLR
On appeal from
Resident Magistrate's Court at Kajiado
Kajiado PMCC No. 282 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Resident Magistrate's Court ( Memorandum of Appeal dated 21st January 2016; no constitutional provision cited)

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, "Kilonzo Wambua & another v Mosoi P. Parkut [2020] KEELC 459 (KLR)", Case Analysis (2020). ELC Appeal No. 4 of 2017 (Formerly Nairobi ELC Appeal No. 3 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/459/eng@2020-11-25

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