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ELCAllowedNot stated in the judgment as provided (originally lodged at Kisii Environment and Land Court; transferred 23rd March 2017)· [2020] KEELC 1146 (KLR)

Lucas Ogola Oyimba v Charles Ochieng Ogutu & another [2020] KEELC 1146 (KLR)

Environment and Land Court
17 September 2020
2,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Lucas Ogola Oyimbo, sued Charles Ochieng Ogutu and Sitivin Ouma Otieno, administrators of the estate of Maricus Olum Ngala (deceased), seeking a declaration that they were bound to fulfil the deceased's contractual obligations and an order of specific performance compelling transfer of two acres of land parcel Kanyamwa/Kojwang/Kachola-Kadwet/198, plus costs and 14% interest. He claimed to have bought one acre from the deceased in 1992 for Ksh 2,500 under a written agreement, and a further acre in 2006 for Ksh 20,000 paid to the deceased's son under a supplementary written agreement, and to have taken possession by planting sisal and erecting a posho mill and church house. The defendants denied the claim, arguing the supplementary agreement was a nullity because its makers were not registered owners, that the delay undermined genuineness, that they were not sued as legal representatives, and that the original parcel had been subdivided into sixteen portions registered in other names. The court framed two issues: whether lawful contracts existed, and whether the plaintiff was entitled to the reliefs sought. It found the agreements complied with section 3(3) of the Law of Contract Act; that although Land Control Board consent was lacking, following Kitilit, Sigei and Macharia Mwangi Maina the court gave effect to constructive trust and equitable estoppel; and that the defendants, as legal representatives of the estate under sections 79, 82 and 83 of the Law of Succession Act, were bound to complete the sale. Judgment was entered for the plaintiff with a declaration, specific performance with rectification of the register, costs and 14% interest from the date of judgment until payment in full.

Key legal issues

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01

Whether valid and enforceable contracts for sale of the suit land existed between the plaintiff and the deceased

Holding

Yes - the written agreements complied with section 3(3) of the Law of Contract Act and were enforceable notwithstanding absence of Land Control Board consent, equitable principles applying

Reasoning

The court found from PExhibits 2, 3, DExh1 and 4 that the contracts complied with the mandatory requirements of section 3(3) of the Law of Contract Act. Although the defendants invoked sections 6 and 7 of the Land Control Act to void the sales, the court followed the Court of Appeal's approach in Kitilit and Sigei that lack of consent does not preclude equitable principles such as constructive trust and estoppel. The plaintiff also took possession, erecting a posho mill, church house and planting sisal.

p. 3
02

Whether the defendants, as legal representatives of the deceased vendor's estate, are bound to complete the sale

Holding

Yes - the defendants admitted in cross-examination that the land belonged to the deceased and that they are his legal representatives, so his contractual obligations bind them

Reasoning

Relying on the definition of 'legal representative' under section 2 of the Civil Procedure Act and Tronistik Union International v Jane Mbeyu, and on sections 79, 82 and 83 of the Law of Succession Act on the powers and duties of personal representatives, the court held that the estate's obligations vested in the administrators. Having proved a valid contract on a balance of probabilities, the plaintiff was entitled to specific performance and rectification of the register.

p. 3

Legal principles established

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  • Possession of land can take different forms including tilling and tending the land
  • Lack of Land Control Board consent does not preclude a court from giving effect to equitable principles such as constructive trust

Court orders

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  1. 1.A declaration that the defendants as administrators of the estate of the deceased vendor, Maricus Olum Ngala, are obliged to fulfil the contractual obligations of the deceased vendor
  2. 2.An order of specific performance to compel the defendants to transfer a portion measuring two (2) acres of Land Parcel No. Kanyamwa/Kojwang/Kachola-Kadwet/198 to the plaintiff and the register to be duly rectified accordingly
  3. 3.Costs of the suit to the plaintiff together with interest thereon at the rate of 14% p.a. from the date of judgment until payment in full

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Law of Succession Act (Cap 160)Sections 79, 82, 83
  • Civil Procedure Act (Cap 21)Section 2; Section 3A
  • Evidence Act (Cap 80)Section 97(1)
  • Land Control Act (Cap 302)Sections 6, 6(1), 7
  • Constitution of Kenya, 2010Article 10(2)(b); Articles 7(3)(b), 159(2)(b) and (d)
  • Environment and Land Court Act, 2015Sections 3 and 19

Cases cited (11)

  • Galaxy Paints Co. Ltd v Falcon Grounds Ltd
    (2000) 2EA 385
  • Great Lakes Transport Company (V) Ltd vs Kenya Revenue Authority
    (2009) KLR 720
  • Kimani Ruchine vs Swift Rutherford Company Ltd and another
    (1976-80) KLR 1500
  • Titus O. Nyachieo vs Martin Okioma Nyauma and 3 others
    (2015) eKLR
  • Elijah O. Opar vs Tobias Odhiambo Abach
    (2019) eKLR
  • Sumaria and another vs Allied Industries Ltd
    (2007) 2 KLR 1
  • Tronistik Union International and another vs Jane Mbeyu and another
    (1993) eKLR
  • Kariuki vs Kariuki
    (1983) KLR 227
  • Willy Kimutai Kitilit vs Michael Kibet
    (2018) eKLR
  • William Kipsoi Sigei vs Kipkoech Arusei and another
    (2019) eKLR
  • Macharia Mwangi Maina and 87 others vs Davidson Mwangi Kagiri
    (2014) eKLR
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act; Sections 3 and 19 of the Environment and Land Court Act, 2015

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, "Lucas Ogola Oyimba v Charles Ochieng Ogutu & another [2020] KEELC 1146 (KLR)", Case Analysis (2020). Not stated in the judgment as provided (originally lodged at Kisii Environment and Land Court; transferred 23rd March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1146/eng@2020-09-17

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