Kenya Ihenya Company Limited v Ruth Nyambura Chuchu & 2 others; Jackton Osewe Agwet & I Saac Nyongoina & 146 others (Interested Parties); Urutagwo Mwiruti Women Group (Necessary Party) [2021] KEELC 467 (KLR)
The bottom line
#A Kenyan court enforced a decades-old land sale against a deceased seller's family, but the company's adverse possession claim failed because possession fell short of twelve years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a valid agreement of sale dated 12th September 1989 between the deceased and the Plaintiff.
- 2.If so, was there a breach of the terms by either party?
- 3.Whether the Plaintiff should be registered as the proprietor of the parcel of land known as LR NO 7340/91 in place of the deceased and/or his administrices.
- 4.Whether the Plaintiff can sustain a claim for adverse possession.
- 5.Is the Plaintiff entitled to the reliefs sought?
- 6.Who should bear costs of this suit?
Key legal issues
#Validity of the sale agreement of 12th September 1989
The court found a valid and enforceable sale agreement between the deceased and the Plaintiff, with no breach by either party.
The agreement was signed by the chairman and secretary of the Plaintiff and the vendor before an advocate, identified the subject property and consideration, and was supported by receipts, an application for Land Control Board consent signed by the deceased, subdivision approvals and surrender of the title. The allegation of forgery failed because the Defendants adduced no evidence, fraud requiring specific pleading and proof.
Effect of want of Land Control Board consent on the sale
The agreement is enforceable notwithstanding the absence of Land Control Board consent, applying the doctrines of constructive trust and proprietary estoppel.
Relying on Willy Kimutai Kitilit v Michael Kibet, the court held that the Land Control Act does not exclude the doctrines of constructive trust and proprietary estoppel, which apply by analogy to contracts void for lack of consent, especially where the party in breach has unreasonably delayed performing. The deceased had signed the consent application but died before attending the board.
Trust in favour of the Plaintiff and registration as proprietor
The deceased held the suit property in trust for the Plaintiff at his death, and the Plaintiff should be registered as proprietor in place of the deceased and/or his administrices.
Having paid the full purchase price, taken possession and received the original title, the Plaintiff advanced the purchase money such that a resulting trust arose in its favour. Authorities on purchasers' rights under the Law of Succession Act confirm that such interest must be recognized in the distribution of a deceased's estate. The transaction was at an advanced stage of completion when the deceased died.
Claim for adverse possession
The adverse possession claim failed as the Plaintiff had been in possession for only eleven years, less than the 12-year limitation period.
Applying Mtana Lewa v Kahindi Ngala Mwangandi, adverse possession requires 12 years of possession against a title-holding owner who neglects to assert title. Time is computed from when the property was registered in the proprietor's name; the title issued to the deceased on 10th June 1996, so only eleven years had elapsed when the claim was assessed.
The Interested Parties' claim as bona fide purchasers
The Interested Parties' claim fails; they purchased plots from Urutagwo Mwiruti Women Group while the suit was pending and after consent orders restraining alienation.
The plot ownership certificates were issued between September 2008 and 2014, after the suit was filed and after the 22nd July 2008 consent order restraining disposal or alienation. Had they exercised due diligence they would have discovered the pending dispute. Their claim, if any, lies against the Defendants and the Women Group, and the Defendants acted in contempt of the restraining orders.
Legal principles established
#- Fraud must be specifically pleaded and proved by the party alleging it.
- The doctrines of constructive trust and proprietary estoppel may apply to land sale contracts rendered void for want of Land Control Board consent, depending on the circumstances of each case.
- A purchaser for value of a portion of a deceased's estate who was fully paid and put in possession has an interest that must be taken into account in the distribution of the estate.
- A resulting trust automatically arises in favour of the person who advances the purchase money, whether or not the property is registered in his name.
Court orders
#- 1.A declaration that as at the time of the death of the late Solomon Chuchu Wataka on 5th March 2006 he held the land parcel number 7340/91 in trust for the Plaintiff Kenya Ihenya Company Limited.
- 2.The Defendants are permanently restrained from distributing the said parcel namely Land Reference No. 7340/91 otherwise than to the Plaintiff, the said Kenya Ihenya Limited.
- 3.In default of the restraint order, the Deputy Registrar of the court is authorized to sign and execute the necessary transfer forms in favour of the Plaintiff.
- 4.The Plaintiff shall have costs of the suit to be borne by the Defendants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; suit by originating summons under Section 38 of the Limitation of Actions Act, Chapter 22, Laws of Kenya
Relief refused
#Registration of the Plaintiff as proprietor by virtue of adverse possession under Section 38 of the Limitation of Actions Act
The adverse possession claim failed because the period of possession was less than the statutory 12 years, time being computed from registration of the title in the deceased's name on 10th June 1996.
Costs
The Plaintiff shall have costs of the suit to be borne by the Defendants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a) That a declaration is hereby issued that as at the time of the death of late Solomon Chuchu Wataka a.k.a Chuchu Wataku Githiba alias Cucu Wataku (Deceased) on 5 th March 2006 he held the land parcel number 7340/91 in trust for the Plaintiff Kenya Ihenya Company Limited.
That the Defendants are hereby permanently restrained from distributing the said parcel namely Land Reference No. 7340/91 otherwise than to the Plaintiff, the said Kenya Ihenya Limited.
That in default of (b) above the Deputy Registrar of this court is authorized to sign and execute the necessary transfer forms in favour of the Plaintiff.
That the Plaintiff shall have costs of the suit to be borne by the Defendants.
Adverse possession is essentially a situation where a person takes possession of land, asserts rights over it and the person having title to it omits or neglects to take action against such a person in asserting of his title for a certain period, in Kenya 12 years
Had the Interested Parties done due diligence they would have discovered that there was a dispute pending determination in respect of the suit property.
A court of law cannot rewrite a contract between the parties once ascertained that the intention was to enter into a valid contract.
Issues in the judgment
#The judgment records inconsistent positions on when the Plaintiff obtained the title/deed from the farm, and the deceased's date of death is given as 5th March 2006 while DW1 asserts the father got the title in 1999 yet the title exhibit shows issuance on 5th September 1996/10th June 1996; the court itself notes: 'The title issued to the Deceased and which is held by the Plaintiff shows that it was issued on 10 th June 1996 but as per the letter from Githunguri Njiru Farm 1966 Limited it was collected in 1999.'
There is an internal discrepancy in the evidence on the deposit paid: the sale agreement clause 1 records Kshs.50,000/- as part payment while DW1 argued the agreement referred to a deposit of Kshs.250,000, and PW1's affidavit is said to state the deposit was Kshs.1,110,000.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ihenya Company Limited v Ruth Nyambura Chuchu & 2 others; Jackton Osewe Agwet & I Saac Nyongoina & 146 others (Interested Parties); Urutagwo Mwiruti Women Group (Necessary Party) [2021] KEELC 467 (KLR)", Case Analysis (2021). ELC Case No 41 of 2007 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/467/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.