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ELCPartially AllowedNot stated in the judgment text· [2021] KEELC 3309 (KLR)

Cove Investments Limited v Johana Kiprotich Rono & 2 others [2021] KEELC 3309 (KLR)

Environment and Land Court of Kenya
18 May 2021
8,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid nearly everything and lived on the land for 21 years won an order forcing the seller's estate to complete the sale.

What this practically means

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Executive summary

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Cove Investments Limited petitioned against the legal representatives of the estate of Mathias Kimnyole Langat and the Attorney General, seeking leave to apply for land control board consent out of time, a declaration of constructive trust over LR. No. Nakuru/Ol'Ongai Phase 11/34, a direction to transfer the land, and compensation of KShs 11,335,000 for an invasion of the property. The petition arose from a sale agreement dated 1st December 1999 under which the deceased agreed to sell the suit property for KShs 16,758,425, with the vendor contractually obliged to procure land control board consent. No consent was obtained; the deceased sued for vacant possession in Nakuru HCCC No. 158 of 2005 (dismissed for want of prosecution), and the petitioner's extension application in Nairobi HCCC No. 588 of 2006 (O.S) was dismissed with a direction that the consent issue be dealt with in the Nakuru suit. The court held it had jurisdiction because the petition challenged the constitutionality of Section 6 of the Land Control Act, allowing bundled claims; that the petition was not res judicata since prior suits were not determined on the merits; that the company resolution objection was unfounded; and that Section 6 and the six-month limitation under section 8(1) were constitutional. Applying equitable doctrines of constructive trust and proprietary estoppel, and finding the petitioner had paid over 95% of the price and occupied the land for 21 years, the court extended time to apply for consent, declared the respondents trustees, and ordered completion of the transfer upon the petitioner depositing the balance of KShs 782,425. The damages claim failed for want of proof of special damages. Costs were awarded to the petitioner against the 1st respondents.

Key legal issues

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01

Jurisdiction over the constitutional petition with bundled contractual claims

Holding

The court had jurisdiction since the petition challenged the constitutionality of Section 6 of the Land Control Act and could properly bundle the connected claims

Reasoning

The Bill of Rights is enforced by petition in the High Court under Articles 22 and 23, and a declaration of invalidity of a law cannot be sought in an ordinary civil suit. Bundling the connected consent claims was excusable under Article 159(2) which requires justice without undue regard to procedural technicalities. Requiring a fresh suit would delay justice.

p. 6
02

Res judicata

Holding

The petition is not res judicata because neither prior suit was heard and determined on the merits

Reasoning

For res judicata to apply the previous matter must have been heard and finally determined by a competent court. Nairobi HCCC No. 588 of 2006 (O.S) was dismissed without determination on the merits, and Nakuru HCCC No. 158 of 2005 was dismissed for want of prosecution. The doctrine, though applicable to constitutional litigation, was therefore not triggered.

p. 6
03

Constitutionality of Section 6 of the Land Control Act

Holding

Section 6 and the six-month limitation are not unconstitutional

Reasoning

There is a presumption of constitutionality and the burden lies on the party alleging invalidity. The six-month limitation under section 8(1) is not a dead end since parties may seek extension of time or appeal refusal of consent. The Act was enacted for noble public policy considerations, and inconvenience alone does not establish unconstitutionality.

p. 8
04

Whether the reliefs should issue

Holding

Constructive trust and proprietary estoppel were established; time extended and transfer ordered, but the special damages claim failed

Reasoning

The agreement obliged the vendor to obtain the consents, the petitioner paid over 95% of the purchase price and had been in possession for 21 years. Following William Kipsoi Sigei, equitable doctrines apply despite want of consent. The damages claim failed as special damages were not strictly proved beyond an unexplained audit claim.

p. 9

Legal principles established

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  • Res judicata does not apply where the previous suits were not heard and determined on the merits
  • Where a litigant challenges the constitutional validity of legislation, it may bundle connected claims in the constitutional petition
  • Equitable doctrines of constructive trust and proprietary estoppel apply to land transactions governed by the Land Control Act notwithstanding want of consent

Court orders

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  1. 1.The petitioner to deposit in court KShs 782,425 being balance of purchase price within 21 days
  2. 2.Time to apply for Land Control Board consent over LR. No. Nakuru/Ol'ongai Phase 11/34 extended for 6 months
  3. 3.The 1st respondents to execute all necessary forms and transfer instruments for obtaining consent within 30 days, failing which the Deputy Registrar to execute them
  4. 4.Declaration that the 1st respondents hold LR. No. Nakuru/Ol'ongai Phase 11/34 in trust for the petitioner
  5. 5.The 1st respondents directed to transfer the parcel to the petitioner and execute the transfer document within 30 days, failing which the Deputy Registrar to execute it
  6. 6.Upon transfer and issuance of title, the deposited KShs 782,425 to be released to the 1st respondents
  7. 7.Costs of the petition awarded to the petitioner, borne by the 1st respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 22(1), 22(3), 23(3), 24, 40, 156, 159(2)
  • Land Control ActSections 6, 6(1), 7, 8, 8(1), 22
  • Civil Procedure ActSection 7
  • Oaths and Statutory Declarations ActSection 4
  • Civil Procedure RulesOrder 4 rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Legal Notice No. 117 of 2013
  • National Council for Law Reporting Act, 1994Sections 2, 3, 19
  • Companies ActNot specified
  • Development and Use of Land (Planning) Regulations, 1961L.N. 516/1961

Cases cited (25)

  • Kenya Federation of Labour & Another v Attorney General & 2 Others
    [2014] eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Samson Muriungi Mwirebua v Silas Kimathi Mutonga & Another
    [2019] eKLR
  • David Sironga Ole Tukai vs Francis Arap Muge & 2 Others
    [2014] eKLR
  • Mary Akai Lutere v Johnstone Kamau Mwangi
    [2020] eKLR
  • Macharia Mwangi Maina & 87 others vs Davison Mwangi Kagiri
    [2014] eKLR
  • Koyumkei Multipurpose Co-operative Society Ltd & 17 others vs Real Chepngetich Koech
    [2019] eKLR
  • Leo Investments Limited vs Trident Company Limited, HCCC No. 893 of 2010
  • Curly Klurly Ltd v Mtoi Mwero Mtoi & 3 others
    [2019]
  • Steel Formers Limited v SGS (Kenya) Limited & another
    [2020] eKLR
  • Triton Gas Station Limited & another v Kenya Commercial Bank Limited & 2 others
    [2015] eKLR
  • GSD v RSK
    [2019] eKLR
  • County Government of Kilifi v Mombasa Cement Limited
    [2017] eKLR
  • Jeremiah Kariuki Gitau v Joseph Kangethe Mbugua
    [2016] eKLR
  • Joseph Mbogo Mwaniki v Lucy Njoki Njuki
    [2013] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another
    [2016] eKLR
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Ndynabo v Attorney General of Tanzania
    [2001] EA 495
  • Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others
    [2012] eKLR
  • Wamukota v Donati
    [1987] KLR 280
  • William Kipsoi Sigei v Kipkoech Arusei & another
    [2019] eKLR
  • Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd
    [2013] eKLR
  • Cove Investments Limited v Mathias Kimnyole Langat
    [2006] eKLR
Jurisdiction invoked
Articles 22(1), 22(3) and 23(3) of the Constitution read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Cove Investments Limited v Johana Kiprotich Rono & 2 others [2021] KEELC 3309 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3309/eng@2021-05-18

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