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ELCPartially AllowedNot stated in the extract (Kitale ELC suit, further amended plaint dated 20/11/2019)· [2020] KEELC 1158 (KLR)

Victoria Masinde (Suing through her Attorney Betty Tindi Masinde v Lois Chesiriken Psenjen (Legal personal representative of Enock Mokoit Psenjen (Deceased) & 2 others [2020] KEELC 1158 (KLR)

Environment and Land Court
30 September 2020
6,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kitale court ordered a deceased man's estate to complete a land sale his authorised agent made years earlier, protecting a buyer who paid in full.

What this practically means

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Executive summary

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The plaintiff sued the administrators of the estate of the late Enock Mokoit Psenjen and Amy Chelagat Kiptui, seeking specific performance of agreements dated 10/6/2003 and 30/9/2003 and a letter dated 13/8/2003 for the sale of one acre (0.40 Ha) out of Kitale Municipality Block 10/3 (LR 2116/571 Section VII, Kitale) for Kshs.1,100,000/=, or alternatively a refund with interest and damages. The 1st and 2nd defendants denied the sale, denied the powers of attorney to Timothy Naibei Pello, and counterclaimed for the plaintiff's eviction as a trespasser. The court framed five issues. It held that LR 2116/571 and Kitale Municipality Block 10/3 refer to the same parcel, given registered documents and the defendants' own admissions. It found on a balance of probabilities that Enoch executed and registered powers of attorney in favour of Timothy, never revoked, which entitled the 3rd defendant to a quarter acre; the defendants failed to rebut this, calling no attesting advocate or expert. The 3rd defendant, as Enoch's agent with an equitable entitlement, had capacity to sell to the plaintiff, who paid the full consideration and took possession. Enoch's failure to revoke, object or report forgery amounted to implied ratification binding the estate. Specific performance was granted as the equitable remedy, the plaintiff not being a trespasser; the counterclaim was dismissed. Judgment was entered for the plaintiff against the 1st and 2nd defendants jointly and severally, with costs against the 1st and 2nd defendants only.

Key legal issues

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01

Whether LR 2116/571 and Kitale Municipality Block 10/3 are the same parcel

Holding

The court found the two numbers refer to one and the same parcel, evidenced by registered powers of attorney, planning documents and the defendants' own pleadings admitting the transition from the RTA to the RLA regime.

Reasoning

The court examined the powers of attorney, site value receipts, rates clearance certificate, certificate of compliance and subdivision plan approval, all referring to the same land under different numbering regimes. The original defence and Enoch's supporting affidavit also referred to Kitale Municipality Block 10/3, amounting to an admission of the RTA-to-RLA conversion. The court held it inconceivable that the Land Registrar registered a power of attorney over non-existent land.

p. 4
02

Whether Enoch executed the powers of attorney to Timothy and whether they entitled the 3rd defendant to land

Holding

On a balance of probabilities the powers of attorney were genuine, registered and never revoked, and they entitled the 3rd defendant to a quarter acre, which she sold to the plaintiff.

Reasoning

The register of powers of attorney confirmed registration on 6/6/2003 with no revocation. The defendants alleged forgery but called no expert or attesting advocate as witness and made no police report. The rates payment arrangement showed the 3rd defendant was to apply sale proceeds to rates, demonstrating her entitlement to a portion of the land in return for services.

p. 5
03

Whether the 3rd defendant had capacity to sell to the plaintiff and whether the estate is bound

Holding

The 3rd defendant, having an equitable entitlement and acting as Enoch's agent, had capacity to dispose of her interest; her sale agreements with the plaintiff were valid and Enoch impliedly ratified the agents' actions, binding the 1st and 2nd defendants.

Reasoning

The court found the land was identified on the ground to both parties. Subdivision and conversion depended on payment of rates, which the 3rd defendant was authorised to raise by sale. Enoch never revoked the powers, never objected in his lifetime and never reported forgery, amounting to implied ratification binding the administrators of his estate.

p. 6
04

Whether specific performance should be granted

Holding

Specific performance was granted because there was a valid contract, the plaintiff paid the full consideration of Kshs.1,100,000/=, took possession, and a refund would be inadequate given the land's location.

Reasoning

Relying on the settled equitable principles, the court found all substantial terms were performed by the plaintiff, she had taken possession and altered her position, the 3rd defendant was merely the agent of the true vendor, and damages or refund would be inadequate since equivalent land in Milimani Estate would be difficult to obtain. The plaintiff was found not to be a trespasser and the counterclaim failed.

p. 7

Legal principles established

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  • The burden of proof in civil claims lies on the party asserting the facts, under section 107 of the Evidence Act
  • A defendant who fails to call evidence to controvert the plaintiff's evidence makes it easier for the plaintiff to prove its case on a balance of probabilities
  • A person with an equitable interest in land, even before formal transfer, has capacity to dispose of that interest, and an agent authorised to sell binds the principal's estate
  • Specific performance is discretionary and requires a valid enforceable contract, performance by the plaintiff, and absence of hardship or adequate alternative remedy

Court orders

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  1. 1.The plaintiff's suit against the 1st and 2nd defendants succeeds and the 1st and 2nd defendants' counterclaim is dismissed
  2. 2.An order of specific performance compelling the 1st and 2nd defendants to complete the agreements dated 10/6/2003 and 30/9/2003 and the letter dated 13/8/2003 and to transfer a portion of land measuring 0.40 Ha out of Kitale Municipality Block 10/3 (also known as LR 2116/571 - Kitale), occupied by the plaintiff, to the plaintiff; in default the Deputy Registrar of the court shall execute all documents necessary to effect the transfer
  3. 3.Only the 1st and 2nd defendants shall bear the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
  • Physical Planning Act Cap 286Certificate of compliance

Cases cited (6)

  • Serraco Limited v Attorney General
    [2016] eKLR
  • Charterhouse Bank Ltd v. Frank N. Kamau, CA. No. 87 of 2014
  • Kirugi & Another v Kabiya & 3 Others
  • George Njenga Kagai v Samuel Kabi Njoroge & another
    [2019] eKLR
  • Gurdev Singh Birdi and Marinder Singh Ghatora and Abubakar Madhbuti, Civil Appeal No. 165 of 1996
  • Reliable Electrical Engineering Ltd Vs Mantrac Kenya Ltd
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "Victoria Masinde (Suing through her Attorney Betty Tindi Masinde v Lois Chesiriken Psenjen (Legal personal representative of Enock Mokoit Psenjen (Deceased) & 2 others [2020] KEELC 1158 (KLR)", Case Analysis (2020). Not stated in the extract (Kitale ELC suit, further amended plaint dated 20/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1158/eng@2020-09-30

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