Zaphania Saul Khisa & 3 others v Collins Malili Makio & 3 others [2021] KEELC 1741 (KLR)
The bottom line
#A Kenyan court confirmed that buyers who pay for land and take possession own it in equity, even if the title stays in someone else's name.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased father sold the minors' interest in Plots 347 and 349 to the plaintiffs
The court found as a fact that the father, Peter Makio, did sell the plots to the 1st and 3rd plaintiffs, as evidenced by the agreement produced (PExh 2) and the plaintiffs' long possession
The court found the 1st plaintiff had occupied Plot 653 (formerly 349) since 1999, corroborated by the surveyor's report. The 4th defendant's claim to possession 'fell flat on its face'. The court inferred that the father had secured the land in his sons' names and then sold it, demonstrating his intention; the agreement PExh 2 evidenced the sale by the father to Abuka, from whom the 1st plaintiff purchased.
Whether the sale was sufficient to pass a proprietary interest to the purchasers
Yes - the doctrine of constructive trust arose because consideration was paid in full and possession changed hands
The defendants did not challenge payment of the purchase price. Once consideration was paid and possession passed, interest vested in the 1st and 3rd plaintiffs; the 3rd plaintiff transferred his interest in Plot 349 to the 1st plaintiff. The court applied the constructive trust doctrine as urged by the plaintiffs' authorities, and held the subsequent transfers to the defendants improper.
Whether the claim over Plot 347 was res judicata
Yes - the dispute over Plot 347 had been resolved in Kitale PMCC No 266 of 2005 and an appeal was pending
The defendants pleaded that the lower court had dealt with the dispute and ordered a refund of Ksh 260,000/=. The court accepted that this decision, under appeal, barred relitigation of Plot 347 in this suit and confined the judgment to Plot 349 (now 653).
What remedy should issue where the plot has since been transferred to a third party
Equitable compensation in lieu of cancellation: refund of the assessed market value of Ksh 5,000,000, with transfer of the plot to the plaintiffs in default
Because Plot 349 had already been transferred into the 4th defendant's name, the court elected to apply equity and order a refund of value rather than cancellation of title. In the absence of valuation evidence, the court took judicial notice of the prevailing market value of approximately Ksh 1,000,000 per acre, valuing the 5 acres at Ksh 5,000,000, with an alternative order for transfer of the plot to the plaintiffs on default.
Legal principles established
#- Where consideration and possession have passed to a purchaser under an agreement, the doctrine of constructive trust applies to protect the purchaser's interest
- A purchaser in occupation of land for a long period, whose interest arises from a valid sale, holds an interest that makes a subsequent transfer of the land to another improper
- Where cancellation of a registered title is not feasible, equity permits compensation by refund of the market value of the land
Court orders
#- 1.A declaration that plot no 349 was properly sold to the 3rd plaintiff by the 1st and 2nd defendant's father thus passing proprietary interest therein to the 3rd plaintiff
- 2.A declaration that plot no 349 was properly sold by Johnstone Abuka to the 1st plaintiff thus passing proprietary interest therein to the 1st plaintiff
- 3.In lieu of cancellation of the title issued in the name of the 4th defendant in respect of plot no Trans Nzoia/Zea/653, the defendants shall within 60 days jointly and severally refund the 1st plaintiff Ksh 5,000,000/= being the estimated current market value of Plot No 349-Zea
- 4.In default of settlement of the refund sum, Plot No 349-Zea shall be transferred to the plaintiffs and the Deputy Registrar shall execute all documents requisite for the transfer
- 5.The defendants shall bear the costs of this suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited in judgment); suits consolidated by court order on 7/2/2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zaphania Saul Khisa & 3 others v Collins Malili Makio & 3 others [2021] KEELC 1741 (KLR)", Case Analysis (2021). Kitale ELC No 9 of 2015 (consolidated with Kitale ELC No 117 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1741/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.