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ELCPartially AllowedPlaint dated 20th February 2018 (Thika ELC)· [2020] KEELC 1468 (KLR)

Wanjiku Mwaura v Ruth Wambui Keigi [2020] KEELC 1468 (KLR)

Environment and Land Court
30 July 2020
3,933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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An oral land exchange agreement is unenforceable in Kenya, and any land transfers done under it can be cancelled.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Komothai/Kiratina/1060, sued the Defendant, registered owner of Ruiru/Ruiru East 3/308, seeking rescission of an oral 2011 agreement exchanging the two parcels, rectification of the register cancelling both resulting registrations, mesne profits, damages for breach of contract and costs. She alleged the Defendant breached an implied term that the Ruiru land, of lesser value, be subdivided into four portions and be free of encumbrances, and that transfers were effected without her consent. The Defendant denied the conditions, asserting a lawful, consented exchange sanctioned by the Land Control Board. The court framed three issues: sustainability of the suit, entitlement to the orders sought, and costs. It held the oral exchange agreement offended Section 3(3) of the Law of Contract Act and was void ab initio, rendering claims for rescission and breach a nullity. However, the rectification prayers survived because they rested on the independent allegation that transfer forms were executed without the Plaintiff's consent. Since acts done in furtherance of the void agreement were illegal, the registrations necessarily collapsed, and the court exercised its power under Section 80 of the Land Registration Act to order cancellation of both registrations (prayers b and c). Mesne profits failed for want of specific pleading and proof. On the enduring principle that costs follow the event, tempered by discretion under Section 27 of the Civil Procedure Act, the court ordered each party to bear her own costs, allowing the claim partially.

Key legal issues

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01

Whether the suit founded on an oral land exchange agreement is sustainable

Holding

The suit is a nullity to the extent that it seeks rescission of the oral contract and damages for breach, but the prayers for cancellation and rectification of the register can be sustained without the agreement

Reasoning

Section 3(3) of the Law of Contract Act, echoed in Section 38 of the Land Registration Act, requires contracts for disposition of interests in land to be in writing, signed and witnessed. The exchange agreement was oral and thus void. However, the rectification prayers rested on the allegation that transfer forms were executed without the Plaintiff's consent, an independent cause of action not dependent on the oral agreement.

p. 4
02

Whether the Plaintiff is entitled to cancellation and rectification of the register

Holding

Yes - the transfers and registrations made in furtherance of the void agreement are illegal and must collapse

Reasoning

Having found the oral agreement void ab initio, acts done in furtherance of it were illegal. Section 80 of the Land Registration Act empowers the court to order rectification where registration was obtained by fraud or mistake. Registrations founded on an unenforceable contract cannot stand, so the Plaintiff was entitled to cancellation of both registrations.

p. 4
03

Whether the Plaintiff is entitled to mesne profits

Holding

No - mesne profits were not specifically pleaded and proved

Reasoning

It is trite that mesne profits must be specifically pleaded and proved with material demonstrating how the claimed amount was arrived at. The Plaintiff placed no such material before the court, so that head of relief failed.

p. 5

Legal principles established

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  • A contract for disposition of an interest in land must be in writing, signed by all parties and witnessed; an oral agreement is a nullity
  • Whether a suit founded on a non-compliant contract is a nullity depends on the precise plea and actual relief sought; restitutionary or rectification claims may survive
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake
  • Mesne profits must be specifically pleaded and proved
  • Costs follow the event but are discretionary; costs are to compensate, not penalize

Court orders

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  1. 1.The Plaintiff's claim vide Plaint dated 20th February 2018 is partially merited and allowed in terms of prayers (b) and (c)
  2. 2.Prayer (b): order directing the Registrar of Lands, Kiambu, to rectify the register by cancelling the registration of parcel No. Komothai/Kiratina/1060 in the name of the Defendant
  3. 3.Prayer (c): order directing the Registrar of Lands, Kiambu, to rectify the register by cancelling the registration of parcel No. Ruiru/Ruiru East 3/308 in the name of the Plaintiff
  4. 4.Each party to bear her own costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Registration ActSection 38
  • Land Registration ActSection 80(1)
  • Civil Procedure ActSection 27
  • Auctioneers ActCap 526 (referenced within Section 3 proviso)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Daudi Ledama Morintat …Vs… Mary Christine Karie & 2 others
    [2017] eKLR
  • Rainald Schumacher –vs- Aubrey Garth Monsey
    [2008] eKLR
  • Laikipia Mifugo Ranching Co. Ltd –vs- Nanyuki Ranching Ltd
    [2007] eKLR
  • John Michael Wanjao –vs- Alubala Abonayo Andambi
    [2011] eKLR
  • Leo Investment Ltd …Vs… Estuarine Estate Ltd
    [2017] eKLR
  • Kukal Properties Development Limited …Vs…. Tafazzal H Maloo & 3 Others
    (1993) eKLR
  • Peter Mwangi Mbuthia & another …Vs… Samow Edin Osman
    [2014] eKLR
  • R…Vs… Rosemary Wairimu Munene, Exparte Applicant…Vs… Ihururu Diary Farmers Cooperative Society Ltd
    Judicial Review No. 6 of 2014
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Plaint filed under civil procedure; rectification sought under Section 80 of the Land Registration Act)

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, "Wanjiku Mwaura v Ruth Wambui Keigi [2020] KEELC 1468 (KLR)", Case Analysis (2020). Plaint dated 20th February 2018 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1468/eng@2020-07-30

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