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ELCPartially AllowedNot stated in judgment· [2021] KEELC 2935 (KLR)

Samuel Chege Gitau & another v Joseph Gicheru Muthiora [2021] KEELC 2935 (KLR)

Environment and Land Court
10 June 2021
SOS. Okong'o
5,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Nairobi court forced a land seller to transfer property despite late Land Control Board consent, because the buyers had paid substantially and occupied the land.

What this practically means

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Executive summary

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The Plaintiffs sued by Originating Summons seeking specific performance of an agreement of sale dated 1st April 2008 under which they purchased from the Defendant a portion of Title No. Dagoretti/Riruta/3102 measuring 33.3 metres by 29.5 metres for Kshs. 2,100,000/-. They took possession in 2009, developed the land, obtained LCB consent in January 2012, and paid the bulk of the purchase price, leaving a small balance. They sought a fresh subdivision accounting for an encroachment by Nairobi City County and transfer of the sold portion. The Defendant, by a replying affidavit deemed a defence and a counter-claim, admitted the agreement but contended it was null and void because LCB consent was obtained 45 months after the agreement, outside the six-month period under the Land Control Act, and that the Plaintiffs, having not completed payment, were not entitled to specific performance. He sought declarations of nullity, an order for vacation and a permanent injunction. The court held that the lack of a valid LCB consent was no defence, following Macharia Mwangi Maina and Willy Kimutai Kitilit, because the Plaintiffs' substantial payment and possession created a constructive trust. The frustration defence was rejected as not raised in good faith. On the balance, the court preferred the Plaintiffs' demand letter showing payment of Kshs. 1,900,000/-, finding Kshs. 200,000/- owing, payable on completion. Judgment was entered for the Plaintiffs: payment of the balance within 60 days, registration of the mutation and transfer within 90 days, alternative fresh subdivision, liberty to pursue the County for encroachment, and costs to the Plaintiffs. The counter-claim was dismissed.

Key legal issues

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01

Whether the agreement of sale was void for want of a valid Land Control Board consent obtained outside the six-month statutory period

Holding

Lack of a valid LCB consent is not a valid defence; a constructive trust arose in favour of the Plaintiffs who had paid substantially and were in possession

Reasoning

The court applied Macharia Mwangi Maina and Willy Kimutai Kitilit, holding that the equitable doctrines of constructive trust and proprietary estoppel supersede the Land Control Act. The Defendant was obliged to obtain consent, gave possession before application, and the Plaintiffs developed the property to his knowledge. The consent was void for being late, but that does not invalidate the agreement or defeat specific performance.

p. 5
02

Whether the agreement was frustrated by the Nairobi City County's encroachment

Holding

The encroachment did not frustrate the agreement and the defence was not raised in good faith

Reasoning

The encroachment occurred years after the agreement and after the LCB consent, by which time the Plaintiffs were beneficial owners. No evidence showed any portion of the mother parcel was on a road reserve. The encroachment did not prevent the Defendant from transferring; it was for the Plaintiffs to pursue the County.

p. 5
03

The balance of purchase price owing

Holding

The Plaintiffs paid Kshs. 1,900,000/- and owe Kshs. 200,000/-, payable upon completion

Reasoning

The disputed receipt of 11th February 2011 was unsigned and unverified, and the Plaintiffs' own demand letter of 5th September 2014 stated they had paid Kshs. 1,900,000/-. The 1st Plaintiff admitted no further payment was made after that letter. The court therefore found the balance to be Kshs. 200,000/-.

p. 5
04

Whether specific performance should be granted despite incomplete payment

Holding

Yes; the Defendant admitted readiness to transfer on payment of the balance and gave no excuse for non-performance

Reasoning

Specific performance is discretionary but guided by fixed principles. The Plaintiffs paid substantially, took possession and developed the property; the balance was payable on completion, which the Defendant never effected. His own evidence that he was ready to transfer upon payment removed any impediment to the order.

p. 4

Legal principles established

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  • The doctrines of constructive trust and proprietary estoppel may supersede lack of Land Control Board consent, making lack of consent no defence to specific performance where the purchaser has paid substantially and taken possession
  • Specific performance requires the plaintiff to have performed, or be ready and willing to perform, his obligations under the contract

Court orders

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  1. 1.The Plaintiffs shall pay to the Defendant Kshs. 200,000/- being the balance of the purchase price within sixty (60) days
  2. 2.Upon receipt of the said sum, the Defendant shall process the registration of the Mutation presented for registration on 6th September, 2011 and transfer to the Plaintiffs Title No. Dagoretti/Riruta/6188 within ninety (90) days of receipt of the payment
  3. 3.The Plaintiffs shall be at liberty to pursue compensation from whoever encroached on the portion of Title No. Dagoretti/Riruta/6188 in case such encroachment was illegal
  4. 4.In the event the Mutation cannot be registered for any reason not attributable to the Defendant's failure, the Defendant shall carry out a fresh sub-division of Title No. Dagoretti/Riruta/3102 and transfer to the Plaintiffs a portion with frontage along Kahuho Road measuring 33.3 metres by 29.5 metres
  5. 5.In the event of a fresh sub-division, the Defendant shall be at liberty to pursue compensation from whoever unlawfully encroached on Title No. Dagoretti/Riruta/3102
  6. 6.The Plaintiffs shall have the costs of the suit
  7. 7.The parties shall be at liberty to apply limited only to the execution of the orders issued

Authorities

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Legislation

  • Land Control ActSection 6(1), Section 9(2)
  • Civil Procedure RulesOrder 37 Rule 19(1)
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(2)
  • Constitution of KenyaArticle 10(1)(b), 10(2)(b), 159(2)(e), Sixth Schedule Transitional and Consequential Provisions clause 7

Cases cited (9)

  • Gurdev Singh Birdi and Marinder Singh Ghatora v Abubakar Madhubuti
    CA No. 165 of 1996
  • Amina Abdulkadir Hawa v Rabinder Nath Anand & Another
    [2012] eKLR
  • Manzoor v Baram
    [2003] 2 E.A 580
  • Thrift Homes Limited v Kays Investment Limited
    [2015] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    (2018) eKLR
  • Mukesh Manchand Shah & Another v Priyat Shah & Another
    [2015] eKLR
  • CMC Aviation Limited v Kenya Airways Limited
    [1978] eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for specific performance of an agreement for sale of land

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, "Samuel Chege Gitau & another v Joseph Gicheru Muthiora [2021] KEELC 2935 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2935/eng@2021-06-10

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