Jared Obudo Ajore v Penina Aoko Owidi [2021] KEELC 638 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved the sale agreements and full payment of the purchase price on a balance of probabilities
Yes; the plaintiff's claim was firm, unchallenged and cogent, supported by PExhibits 1 to 10 and corroborating testimony of PW2 and PW3
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.
Whether the absence of Land Control Board consent invalidated the sale agreements
No; the agreements are valid and enforceable without the consent where full purchase price was paid and the purchaser is in possession
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.
Whether the plaintiff was entitled to specific performance and a permanent injunction
Yes; the plaintiff was entitled to all reliefs sought at the foot of the plaint
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.
Legal principles established
#- 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
#- 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.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.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.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.Costs of the suit together with interest thereon at court rates
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.