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ELCAllowedELC Appeal No. 5 of 2017 (Formerly Nairobi ELC Appeal No. 7 of 2016)· [2020] KEELC 487 (KLR)

John Muthusi Mweke v Mosoi P. Parkut [2020] KEELC 487 (KLR)

Environment and Land Court
26 November 2020
COChristine Ochieng
3,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who paid, took occupation, and was shown the land won it despite missing 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, in Kajiado PMCC No. 323 of 2010, which dismissed the Appellant's suit seeking a declaration that 1990-1992 agreements for the sale of 38 acres out of Kajiado/Kaputiei Central/677 were valid, a permanent injunction, and specific performance. The lower court had held the suit statute barred, the land non-existent when the agreements were made, and that constructive trust could not arise for want of Land Control Board consent. Allowing the appeal, Christine Ochieng J held that limitation for land claims runs for 12 years under section 7 of the Limitation of Actions Act and began only on 17th July 1998 when the Respondent obtained his title. Relying on the Court of Appeal decisions in Willy Kimutai Kitilit v Michael Kibet and Macharia Mwangi Maina v Davidson Mwangi Kagiri, the court held that the doctrine of constructive trust, elevated by Article 10(2)(b) of the Constitution, renders a transaction void for lack of Land Control Board consent enforceable where the purchaser paid, took occupation of land the vendor pointed out, and the vendor admitted receiving the purchase price. The Respondent's lease defence failed as unpleaded. The court set aside the lower court judgment and decreed that the Respondent transfer the 38 acres to the Appellant within 90 days, failing which the Deputy Registrar would execute the transfer forms, with costs of the appeal to the Appellant.

Key legal issues

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01

Whether the Appellant was entitled to 38 acres out of Kajiado/Kaputiei Central/677 notwithstanding want of Land Control Board consent

Holding

The transaction is enforceable via constructive trust; the Appellant is entitled to have the 38 acres registered in his name

Reasoning

The court found the Respondent admitted receiving Kshs. 70,000, never disputed the handwritten agreements, and pointed out the land to the Appellant who occupied it from 1990. Relying on Willy Kimutai Kitilit v Michael Kibet and Macharia Mwangi Maina v Davidson Mwangi Kagiri, the court held that constructive trust, an equitable doctrine elevated by Article 10(2)(b) of the Constitution, supersedes the Land Control Act where a transaction is void for lack of consent. Part performance created a trust constituting an overriding interest over the land.

p. 4
02

Whether the suit in the lower court was statute barred

Holding

The suit was not time barred; limitation for land claims is 12 years and time began to run on 17th July 1998 when the Respondent obtained title

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after 12 years. The learned magistrate applied a 6-year period applicable to general contracts. The agreements were executed between 1990 and 1992 while the Respondent had no Certificate of Title; time therefore began to run when title issued on 17th July 1998, making the 2010 suit timely. The Magistrate erred in holding the suit statute barred and in treating the land as non-existent when the Respondent had admitted allocating it.

p. 3
03

Whether the Respondent's lease defence, raised for the first time in testimony, could defeat the Appellant's claim

Holding

It could not; the lease claim was not pleaded nor particularised

Reasoning

In cross-examination the Respondent claimed he gave the Appellant land to farm, implying a lease, but this was never pleaded in the defence nor supported by particulars. The court noted the Respondent admitted showing the Appellant the land and receiving money for it. The court also found the Magistrate erred in disregarding the admission of receipt of Kshs. 70,000 and the undisputed handwritten agreements.

p. 2

Legal principles established

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  • Where the subject of a contract involves land, limitation time only begins to run once the vendor obtains a Certificate of Title
  • A transaction void for lack of Land Control Board consent is nonetheless enforceable under the doctrine of constructive trust where the purchaser paid the price, took occupation and the vendor pointed out the land

Court orders

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  1. 1.That Judgement and Decree by Honourable Mr. E A. Mbicha Resident Magistrate delivered on 26th of January, 2016 in Kajiado Principal Magistrates Court Civil Case No. 323 of 2010 be and is hereby set aside
  2. 2.The Respondent be and is hereby directed to effect transfer of the thirty-eight (38) acres of land out of land parcel number Kajiado/Kaputiei Central/677 to the Appellant, 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
  • Constitution of KenyaArticle 10(2)(b)
  • Auctioneers ActCap. 526
  • Land Disputes Tribunal Actrepeal noted

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. 323 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court under the Environment and Land Court Act over appeals from subordinate courts in land matters

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, "John Muthusi Mweke v Mosoi P. Parkut [2020] KEELC 487 (KLR)", Case Analysis (2020). ELC Appeal No. 5 of 2017 (Formerly Nairobi ELC Appeal No. 7 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/487/eng@2020-11-26

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