Henry Kipngetich Terer v Cecilia Soi & Stanley Ngeno [2020] KEELC 1596 (KLR)
The bottom line
#A Kenyan family that bought land with only an oral agreement decades ago kept it, while a deal done without probate authority was voided.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC where a claim concerns land owned by a deceased person
The ELC has jurisdiction because the dispute concerns occupation and title to land, not distribution of an estate
The court distinguished the mandate of the probate court (distribution of estates) from the ELC's mandate under Article 162(2)(b) and section 13 of the ELC Act. Since the core question was whether the defendants acquired good title to portions of the suit land, issues of occupation and title fell squarely within the ELC's jurisdiction despite the deceased's registered ownership.
Enforceability of an oral/unwritten sale of land pre-2003
Valid where part performance (possession) is proved, per section 3(7) proviso
The 1st Defendant's husband purchased 5 acres between 1979 and 1998 and the family took possession in 1998, corroborated by the Plaintiff's advocate's letter. Following Peter Mbiri Michuki, section 3(3) as amended in 2003 does not apply to earlier oral contracts coupled with part performance, so the absence of a written agreement did not invalidate the sale.
Defect of missing Land Control Board consent
Curable under section 8(1) of the Land Control Act by extension of time
Although the 1st Defendant did not produce the consent, the court held it could exercise its discretion under section 8(1) to extend time since the Plaintiff knew of the purchase and occupation since 1998. The lack of consent therefore did not void the transaction.
Exchange of land belonging to a deceased person before grant confirmation
Void; the 2nd Defendant acquired no title and eviction follows
Zephania Marindany sold/exchanged part of the deceased's land without a confirmed grant, contrary to sections 82(b)(ii), 55(1) and 45 of the Law of Succession Act, amounting to intermeddling. The exchange agreement was void, the Plaintiff proved his case against the 2nd Defendant, and the court declined to award costs against him since the estate's heirs instigated the transaction.
Legal principles established
#- Before the 2003 amendment to section 3(3) of the Law of Contract Act, an unwritten agreement for sale of land was enforceable where possession was taken in part performance
- A spouse in actual occupation of land for over 12 years acquires an overriding interest under section 28 of the Land Registration Act
- A sale of immovable property of a deceased person before confirmation of grant is void as intermeddling
- Special damages must be specifically pleaded and strictly proved
Court orders
#- 1.The Plaintiff's suit against the 1st Defendant is dismissed in its entirety
- 2.Declaration that the 1st Defendant and Kipkemoi Elijah Soi are the beneficial owners of 5 acres of L.R. KERICHO/NDARAWETA/2153 and the encroachment by the Plaintiff is illegal, null and void
- 3.Injunction restraining the Plaintiff from interfering with the 1st Defendant's quiet possession of and trespassing on the five acres
- 4.Costs of the suit and counterclaim to be borne by the Plaintiff
- 5.Eviction order against the 2nd Defendant and any person cultivating or occupying the land under his authority
- 6.Injunction restraining the 2nd Defendant from interfering with the Plaintiff's quiet possession of 0.927 acres
- 7.Each party shall bear his own costs in the suit against the 2nd Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Kipngetich Terer v Cecilia Soi & Stanley Ngeno [2020] KEELC 1596 (KLR)", Case Analysis (2020). Kericho ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1596/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.