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ELCPartially AllowedELC Appeal (Kithimani PMCC No. 208 of 2014 appealed)· [2021] KEELC 1803 (KLR)

Nahashon Mutuku Ndungu v Anthony Kusu Wambua [2021] KEELC 1803 (KLR)

Environment and Land Court
24 September 2021
4,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer lost his claim because he never paid in full or obtained Land Control Board consent, making the sale agreement unenforceable.

What this practically means

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Executive summary

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This was a first appeal from the judgment of the Principal Magistrate's Court at Kithimani (Kithimani PMCC No. 208 of 2014) delivered on 31st July 2019, in which the magistrate found that the Appellant, though registered as owner of Mbiuni/Katitu/371, held it in trust for his late brother Laban Kimau Ndungu, who had sold it to the Respondent, and allowed the Respondent's claim in its entirety. The court first disposed of the objection that the Record of Appeal lacked a certified decree, holding that Order 42 Rule 13(4)(f) requires the judgment, order or decree appealed from, and that it is not mandatory to attach both. On the merits, the court applied the Supreme Court's decision in Isaac M'inanga Kiebia, holding that customary trust is a question of fact to be proved by the claimant, and found that the Respondent failed to establish that the suit property was ancestral family or clan land or that the Appellant was designated to hold it for the family. The court further held that only the estate of the late Laban could raise the trust claim, there being no privity of contract between the Appellant and the Respondent. The sale agreement of 23rd August 2012 was held unenforceable because the purchase price was not fully paid and no Land Control Board consent was obtained, contrary to the Land Control Act. The appeal was allowed: the judgment of the lower court was set aside, the Plaint dismissed with costs, the Defendant's Counter-claim allowed as prayed, and the Respondent ordered to pay the costs of the appeal.

Key legal issues

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01

Competence of the Record of Appeal for want of a decree

Holding

It is not mandatory to include a decree in the Record of Appeal; the judgment of the lower court suffices under Order 42 Rule 13(4)(f).

Reasoning

The court adopted the reasoning in Elizanya Investments that the conjunctive 'or' in the rule means a decree or judgment is required, not both. A decree is an extract of the judgment. Since the judgment of the lower court was exhibited, the appeal could not be struck out for want of the decree.

p. 4
02

Whether the Appellant holds the suit property in customary trust for his late brother

Holding

The Respondent failed to prove that the suit property was ancestral family or clan land registered in the Appellant's name on behalf of the family; the trust claim could only be raised by the estate of the deceased brother.

Reasoning

Applying Isaac M'inanga Kiebia, the court found that the claimant must prove family/clan land and designation of the registered proprietor as trustee. The evidence showed the father's land was registered in the wives' names for their children, and the suit property was not among those parcels. The Respondent as purchaser lacked standing to plead the trust.

p. 5
03

Enforceability of the sale agreement of 23rd August 2012

Holding

The agreement was unenforceable because the purchase price was not fully paid and no Land Control Board consent was obtained, contrary to the Land Control Act.

Reasoning

The Respondent admitted in cross-examination that he did not pay the entire purchase price and never obtained Land Control Board consent. Transfers of agricultural land without such consent are void. Additionally, the agreement did not clearly show whether a portion or the whole parcel was sold, making the claim for the entire property unsustainable.

p. 5

Legal principles established

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  • An appellant need not attach both the judgment and the decree to the Record of Appeal; Order 42 Rule 13(4)(f) requires the judgment, order or decree appealed from
  • Customary trust is a question of fact which must be proved by the person claiming a right under it
  • Registration as proprietor does not preclude holding land in trust for another, but only the beneficiary or his estate can raise the trust

Court orders

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  1. 1.The Judgment of the lower court in Kithimani PMCC No. 208 of 2014 is set aside
  2. 2.The Plaint dated 5th November, 2014 in Kithimani PMCC No. 208 of 2014 is dismissed with costs
  3. 3.The Defendant's Counter-claim in Kithimani PMCC No. 208 of 2014 is allowed as prayed
  4. 4.The Respondent to pay the costs of the Appeal

Authorities

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Legislation

  • Land Registration ActSection 28
  • Land Control ActSection 6
  • Limitation of Actions ActGeneral
  • Law of Contract ActSection 3
  • Civil Procedure Rules, 2010Order 42 Rule 13(4)(f)

Cases cited (12)

  • Esther Ndegi Njiru & Another vs. Leonard Gatei
    [2014] eKLR
  • Njenga Chogera vs. Maria Wanjira Kimani & 2 Others
    [2005] eKLR
  • Muthuita vs. Muthuita
    [1982-88] 1KLR 42
  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    [2000] eKLR
  • Wamukota vs. Donati
    (1987) KLR 280
  • Mukasa vs. Ocholi
    (1968) EA 89
  • Kanyi vs. Muthiora
    (1984) KLR 712
  • Isaac M'inanga Kiebia vs. Isaaya Theuri M'lintari & Another
    (2018) eKLR
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
  • Elizanya Investments Limited vs. Lean Energy Solutions
    [2021] eKLR
  • Nyota Tissue Products v Charles Wanga Wanga & 4 Others
    [2020] eKLR
  • Kiarie vs. Kinuthia
On appeal from
Principal Magistrate's Court, Kithimani
Kithimani PMCC No. 208 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's judgment (Article 165 Superior Court; Environment and Land Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nahashon Mutuku Ndungu v Anthony Kusu Wambua [2021] KEELC 1803 (KLR)", Case Analysis (2021). ELC Appeal (Kithimani PMCC No. 208 of 2014 appealed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1803/eng@2021-09-24

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