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ELCAllowedNot stated in the judgment as provided (originally filed at Migori Environment and Land Court on 11th December 2020; transferred to Homa Bay ELC on 28th July 2021)· [2021] KEELC 638 (KLR)

Jared Obudo Ajore v Penina Aoko Owidi [2021] KEELC 638 (KLR)

Environment and Land Court
29 November 2021
1,842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a land buyer who paid in full and took possession can force a transfer even without Land Control Board consent.

What this practically means

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Executive summary

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This was a first-instance land suit before the Environment and Land Court at Homa Bay, transferred from Migori ELC on 28th July 2021. The plaintiff, Jared Obudo Ajore, sued the defendant, Penina Aoko Owidi, claiming he had bought a portion of approximately 0.20 Ha to be curved out of LR No. Kabondo/Kodhoch East/1437 for Kshs. 60,000 under agreements dated 14th May 2001 and 14th April 2003, had paid the full purchase price, and had been in possession and occupation since 2001. He sought an order compelling transfer of the portion to him, specific performance, a permanent injunction against interference or alienation, costs and interest. The defendant entered appearance but filed no defence or documents; upon proof of service by an authorised process server, the suit proceeded to formal proof. The plaintiff testified with two corroborating witnesses and produced the sale agreements, search, green card, mutation, consent and surveyor receipts. The court framed a single issue: whether the plaintiff had proved his case on a balance of probabilities. Applying section 3(3) of the Law of Contract Act, the Kitilit doctrine that lack of Land Control Board consent does not preclude equitable relief via constructive trust, and the evidence burden rules (Kirugi vs Kabiya), the court found the claim firm, unchallenged and cogent, and that the reliefs were consistent with Article 40(1) of the Constitution. Judgment was entered for the plaintiff in terms of orders (a) to (d) of the plaint, with a further order that the Deputy Registrar execute the transfer documents if the defendant failed to comply. The judgment was delivered on 29th November 2021 by G.M.A Ongo'ndo, Judge.

Key legal issues

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01

Whether the plaintiff proved the sale agreements and full payment of the purchase price on a balance of probabilities

Holding

Yes; the plaintiff's claim was firm, unchallenged and cogent, supported by PExhibits 1 to 10 and corroborating testimony of PW2 and PW3

Reasoning

PW1 testified that he bought the portion of the suit land from the defendant at Kshs. 60,000 being the full purchase price, and produced the sale agreements of 14th May 2001 and 14th April 2003. PW3 confirmed the sale and PW2 affirmed the plaintiff's possession and occupation since 2001. The suit proceeded by way of formal proof after the defendant, though served, failed to file a defence or documents, and the burden of proof was not lessened by that mode of hearing.

p. 3
02

Whether the absence of Land Control Board consent invalidated the sale agreements

Holding

No; the agreements are valid and enforceable without the consent where full purchase price was paid and the purchaser is in possession

Reasoning

Relying on the Court of Appeal decision in Willy Kimutai Kitilit vs Michael Kibet, the court held that lack of Land Control Board consent does not preclude the court from giving effect to equitable principles, particularly the doctrine of constructive trust. In addition, PExhibit 6 (the consent) was produced as part of the plaintiff's evidence, showing consent was in any event obtained.

p. 2
03

Whether the plaintiff was entitled to specific performance and a permanent injunction

Holding

Yes; the plaintiff was entitled to all reliefs sought at the foot of the plaint

Reasoning

The court found the plaintiff a lawful purchaser in possession whose agreements complied with section 3(3) of the Law of Contract Act. Specific performance was defined per Black's Law Dictionary and the permanent injunction considered against the Nguruman and Giella thresholds. The court also invoked its mandate under section 13(7)(a) of the Environment and Land Court Act to grant preservation orders, including permanent injunctions, and found the claim consistent with Article 40(1) of the Constitution.

p. 3

Legal principles established

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  • Lack of Land Control Board consent does not preclude a court from giving effect to equitable principles, in particular the doctrine of constructive trust, where the purchaser has paid the full purchase price and taken possession.
  • Agreements for sale of agricultural land are valid and enforceable even without the consent of the local Land Control Board so long as the full purchase price was paid and the purchaser is in possession.
  • The burden of proving a case on a balance of probabilities rests on the plaintiff and is not lessened even where the case is heard by way of formal proof.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in terms of orders (a), (b), (c) and (d) at the foot of the plaint dated 26th November 2020
  2. 2.An order directed at the defendant to immediately cause the transfer of the portion bought by the plaintiff, to be curved out of land known as KABONDO/KODHOCH EAST/1437, into the names of the plaintiff
  3. 3.An order for specific performance compelling the defendant to cause the title in respect of the portion bought by the plaintiff to be transferred into the names of the plaintiff
  4. 4.A permanent injunction restraining the defendant, her successors in title, assigns or howsoever, from interfering with the plaintiff's quiet possession and enjoyment of the portion bought and/or from alienating, selling, transferring or dealing with it in any manner
  5. 5.Costs of the suit together with interest thereon at court rates
  6. 6.If the defendant fails to comply with orders (a) and (b), the Deputy Registrar of the court shall execute the requisite documents in respect of the portion of the suit land in favour of the plaintiff upon notice to the defendant
Jurisdiction invoked
Articles 6(3) and 48 of the Constitution of Kenya, 2010; 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, "Jared Obudo Ajore v Penina Aoko Owidi [2021] KEELC 638 (KLR)", Case Analysis (2021). Not stated in the judgment as provided (originally filed at Migori Environment and Land Court on 11th December 2020; transferred to Homa Bay ELC on 28th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/638/eng@2021-11-29

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