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ELCPartially AllowedCivil Appeal No. 2 of 2016· [2020] KEELC 969 (KLR)

Clementina Adero Oyugi v Fredrick Apollo Mwamu [2020] KEELC 969 (KLR)

Environment and Land Court
21 October 2020
AOA. Omollo
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court allowed a landowner to evict a buyer who occupied her plot but never delivered the land he promised in exchange.

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 Busia against the judgment of Hon. C. I. Agutu, RM in Busia CMCC No. 49 of 2015, which had dismissed Clementina Adero Oyugi's suit against Fredrick Apollo Mwamu. The dispute arose from an agreement of 27/7/2013 under which the appellant was to give the respondent a 50ft by 100ft plot curved from L.R. Bukhayo/Mundika/8911 in exchange for 1.5 acres at Kanyaner plus Kshs.50,000. A later agreement of 30/8/2014 reduced the acreage to 3/4 acres. The respondent paid Kshs.50,000 and built on the appellant's land, but had not surveyed or given her possession of the Kanyaner land, nor paid the agreed alternative of Kshs.350,000. The trial magistrate dismissed the suit, finding the appellant had not proved her case on a balance of probabilities. On appeal, A. Omollo, J held that although the absence of Land Control Board consent was undisputed, it was not a contested issue since neither party sought registration of titles; however, the respondent had only partially performed, and the burden shifted to him to show the Kanyaner land was at the appellant's disposal, which he failed to discharge. The trial court's dismissal was held to be in error. The appeal was allowed: the appellant was granted eviction orders as prayed, with the respondent given three months to surrender vacant possession of L.R. Bukhayo/Mundika/8911; the appellant was to refund Kshs.50,000 before executing eviction, refundable by execution within 30 days if the respondent vacated voluntarily; and each party was to bear their own costs of the appeal and the court below.

Key legal issues

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01

Land Control Board consent for transactions over agricultural land

Holding

Although the absence of LCB consent was undisputed, it did not avail the appellant because neither party sought registration of titles to their respective acquired plots

Reasoning

The appellant pleaded that the transaction be declared void for lack of LCB consent and the respondent admitted they had not appeared before any Land Control Board. The trial court had failed to consider the issue, but the appellate judge held that since neither party sought registration of titles to the plots they were to acquire, the absence of consent was not a contested issue requiring determination.

p. 2
02

Breach of the exchange agreement and entitlement to recover the land

Holding

The respondent only partially performed by paying Kshs.50,000; he did not demonstrate that he identified and showed the appellant the Kanyaner plot of 1.5 acres or 3/4 acres, nor paid the agreed alternative Kshs.350,000, so the appellant was entitled to get back her land

Reasoning

The court found that after the respondent settled on the appellant's plot, the burden shifted to him to show the Kanyaner land was at her disposal. He neither surveyed the land nor gave her possession of it, and did not pay the agreed Kshs.350,000 alternative. The trial court's dismissal of the appellant's case on this limb was therefore in error.

p. 2

Legal principles established

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  • Where a party has partly performed a land exchange agreement and taken possession of the other party's land, the burden shifts to him to show that the land he was to give in exchange was at the other party's disposal
  • Lack of Land Control Board consent was not a live issue where neither party sought registration of titles to their respective acquired plots

Court orders

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  1. 1.The appellant is granted orders of eviction as prayed in the plaint, with the respondent given three (3) months to surrender vacant possession of L.R. Bukhayo/Mundika/8911, in default eviction shall issue
  2. 2.The appellant shall refund the respondent the sum of Kshs.50,000 paid to her before executing the eviction order; if the respondent vacates voluntarily he can execute for the sum of Kshs.50,000 within 30 days of surrendering vacant possession
  3. 3.Each party to meet their respective costs of the appeal and those in the court below

Authorities

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Legislation

  • Land Control ActSection 7
On appeal from
Chief Magistrate's Court at Busia
Busia CMCC No. 49 of 2015
Jurisdiction invoked
First appellate jurisdiction over Busia CMCC No. 49 of 2015 (appeal from the Resident Magistrate's court)

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, "Clementina Adero Oyugi v Fredrick Apollo Mwamu [2020] KEELC 969 (KLR)", Case Analysis (2020). Civil Appeal No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/969/eng@2020-10-21

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