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ELCAllowedELC Appeal Case No. 23 of 2018· [2021] KEELC 874 (KLR)

Joseph Kaburu Kiara v John Guantai [2021] KEELC 874 (KLR)

Environment and Land Court
17 November 2021
CNC.K. NZILI
2,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Meru against the judgment of Hon. S. Abuya (S.P.M.) in Meru CMCC No. 291 of 2013, delivered on 27th June 2018. The dispute concerned two sale agreements of 2005 over portions of L.R. No. Timau Settlement Scheme/1279. The appellant, as plaintiff, had sued for eviction, permanent injunction and general damages, alleging the respondent-purchaser, who paid a deposit of Kshs. 70,000/= out of Kshs. 75,000/=, occupied the whole land without completing the purchase. The respondent denied trespass, pleaded he cleared the purchase price, took possession, and counterclaimed for declarations of overriding interest and constructive trust, subdivision and transfer of a half acre. Guided by Selle v Associated Motor Boat, C.K. Nzili J rehearsed the evidence and found the agreements vague, uncertain and contradictory as to timelines and obligations, with each party waiting for the other to perform; the parties thereby walked out of and discharged each other from the agreements. Neither party proved breach. Following Openda v Ahn and Muchira v Gesima Power Mills Ltd, the court held specific performance was unavailable without tender of the purchase price, and the contradictory agreements were void for uncertainty. Nonetheless, applying Willy Kimutai Kitilit v Michael Kibet, the court found a constructive trust arose because the common intention was evident and the appellant had been allowed into vacant possession before transfer; the trial magistrate therefore erred in finding him a trespasser. The appeal was allowed: the lower court judgment was set aside, the respondent's suit dismissed, and judgment entered as prayed in the counterclaim for the exact portion sold, with costs on the consent, transfer, subdivision, appeal and lower court proceedings awarded at a lower scale against the appellant.

Key legal issues

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01

Whether the appellant was a trespasser on the suit land

Holding

The trial magistrate erred in finding the appellant a trespasser; having been allowed into vacant possession before transfer and having paid under the agreements, a constructive trust arose in his favour.

Reasoning

The court found the agreements vague and contradictory on timelines, but the parties by acquiescence varied them: the appellant took vacant possession before transfer. Common intention that he would get a portion was evident, so following the Kimutai Kitilit reasoning, a constructive trust was created by the facts, and the trespasser finding was a misapplication of law.

p. 3
02

Breach of the sale agreements and uncertainty

Holding

Neither party proved breach by the other; the agreements were void for uncertainty as to timelines, and the parties mutually abandoned them.

Reasoning

Clauses 2 and 6 on possession conflicted, and clauses 3 and 4 imposed obligations without timelines. Each party construed the agreement its own way and neither took steps to complete, e.g. booking the land control board. The witnessing law firm itself declared the agreements frustrated, confirming they could not be completed.

p. 3
03

Entitlement to specific performance / counterclaim relief

Holding

Specific performance was unavailable absent payment or tender of the purchase price at completion; judgment was entered as prayed in the counterclaim for the exact portion sold.

Reasoning

Relying on Openda v Ahn, payment or tender at completion is a condition precedent. The appellant took vacant possession before transfer and did not pay transfer fees, breaching first. The court therefore enforced the counterclaim only to the extent of the exact portion sold, not the larger area occupied.

p. 4

Legal principles established

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  • A condition precedent to specific performance of an agreement for the sale of land is that the purchaser must pay or tender the purchase price at the time and place of completing the sale
  • An agreement with contradictory and vague clauses is void for uncertainty
  • Equitable doctrines of constructive trust and proprietary estoppel, grounded in Article 10(2)(b) of the Constitution, supersede the Land Control Act in appropriate cases
  • Where parties to an agreement each wait for the other to perform first without clarity on timelines, they may be taken to have walked out of and discharged each other from the agreements

Court orders

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  1. 1.Set aside the lower court judgment
  2. 2.Dismissed the respondent's suit
  3. 3.Entered judgment as prayed in the counterclaim for the exact portion sold as per the sale agreements
  4. 4.Ordered the appellant, being in occupation of a larger portion as per the sale agreements, to meet the costs for land control board consent, transfer, subdivision and costs of the appeal and the lower court at a lower scale

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Trespass Act Cap 294Section 3(1)
  • Constitution of KenyaArticle 10(2)(b)

Cases cited (9)

  • Selle –vs- Associated Motor Boat
    [1968] E.A. 123
  • Steadman –vs- Steadman
    [1976] AC 536
  • Lloyds Bank plc –vs- Rosset
    [1991] 1 AC 1070
  • Macharia Mwangi Maina & 87 Others –vs- Davidson Mwangi Kagiri
    [2014] eKLR
  • William Kiptarbei Korir & 6 others –vs- Danson Muniu Njeru
    [2018] eKLR
  • William Kipsoi Sigei –vs- KipKoech Arusei & Another
    [2019] eKLR
  • Willy Kimutai Kitilit –vs- Michael Kibet
    [2018] eKLR
  • Openda –vs- Ahn
    [1984] KLR 208
  • Muchira –vs- Gesima Power Mills Ltd
    [2004] eKLR
On appeal from
Chief Magistrate's Court at Meru
Meru CMCC No. 291 of 2013
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure 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, "Joseph Kaburu Kiara v John Guantai [2021] KEELC 874 (KLR)", Case Analysis (2021). ELC Appeal Case No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/874/eng@2021-11-17

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