Aidah Muthambi Ndonye v Michael Maweu Munzyu [2020] KEELC 939 (KLR)
The bottom line
#A Kenyan court ruled that a buyer who paid for land and occupied it for 30 years keeps it, even without Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreements became null and void for want of Land Control Board consent or whether an enforceable constructive trust arose
Although the transactions were void for want of consent, a constructive trust arose in favour of the Defendant who paid the purchase price and has been in possession for approximately 30 years; the trust does not require Land Control Board consent
The court found as fact that the purchase price was paid and vacant possession taken, and that the Defendant had been in possession for about 30 years. Following Court of Appeal jurisprudence (Macharia Mwangi Maina and Willy Kimutai Kitilit), equity elevates constructive trust above the Land Control Act where the vendor unreasonably delays in performing the contract, so substantive justice prevails over the technical voidness under section 6.
Whether the counter claim is time barred
The issue is spent because a constructive trust is not subject to the Limitation of Actions Act
Having established an enforceable constructive trust, the limitation defence falls away. The court held that for the same reasons a constructive trust is exempt from the Land Control Act, it is also exempt from the Limitations of Actions Act, and therefore the counterclaim filed 23 years after the agreements was not statute-barred.
Whether the Plaintiff proved coercion in the 3rd February 2017 agreement
The averments of coercion were not proved to the required standard
The Plaintiff pleaded that police coerced her, but in evidence she admitted the officers did not force her to sign and instead blamed her children. Pleadings at variance with evidence go to no issue. Her changing accounts of when she first met the Defendant and how she obtained the agreements undermined her credibility.
Entitlement to reliefs
The Plaintiff's case fails and the counterclaim succeeds; parcel 1482 was held to be an amalgamation of two plots purchased by the Defendant, with compensation for the disposed subdivision capped at Kshs. 2,000,000
On a balance of probability, the Defendant proved parcel 1482 is an amalgamation of two plots he bought from the deceased. One subdivision was sold to Joseph Kimee, so the remaining subdivision is to be transferred to him plus compensation at current market rates not exceeding Kshs. 2,000,000 as pleaded; general damages were refused for want of a basis.
Legal principles established
#- A constructive trust arising from payment of the purchase price and long possession of agricultural land does not require Land Control Board consent and is enforceable notwithstanding that the transaction is void under the Land Control Act.
- A constructive trust is not subject to the Limitation of Actions Act.
- Pleadings which are at variance with evidence go to no issue and should be disregarded.
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the Defendant
- 2.An order compelling the Plaintiff to transfer land parcels number Makueni/Unoa/1446 and 1464 to the Defendant
- 3.In default of transfer, an order cancelling title deeds for land parcel number Makueni/Unoa/1446 and 1464
- 4.An order compelling the Plaintiff to transfer the undisposed subdivision of land parcel number Makueni/Unoa/1482 to the Defendant
- 5.In default of transfer, an order cancelling title deed for the undisposed subdivision of land parcel number Makueni/Unoa/1482
- 6.The parties to agree on the current market value of the disposed subdivision of land parcel number Makueni/Unoa/1482, failing which the Defendant may engage a professional valuer and recover the valuation fees together with the land value from the Plaintiff, the land value not to exceed Kshs. 2,000,000/=
- 7.In case the Plaintiff declines to transfer the suit properties, the Deputy Registrar of the court is authorized to sign the necessary transfer instruments
- 8.Costs of the suit and interest
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited; suit founded on plaint dated 14th January 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aidah Muthambi Ndonye v Michael Maweu Munzyu [2020] KEELC 939 (KLR)", Case Analysis (2020). ELC Case of Makueni (plaint dated 14th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/939/eng@2020-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.