David Sikuku Kones v Bashir Towet Chemasuet & another [2021] KEELC 3692 (KLR)
The bottom line
#A Kenyan court upheld the first of two competing land sales, ruled an allotment letter is not a title, and ordered the rival buyer off the land.
What this practically means
#Executive summary
#Key legal issues
#Priority of competing sales of the same land
The first sale to the plaintiff is upheld and the second sale to the 2nd defendant is set aside.
The 1st defendant sold the same 2 acres to two purchasers within a week: agreement of 4/7/2013 (completed 15/10/2013) with the plaintiff and agreement of 11/7/2013 with the 2nd defendant. The plaintiff's agreement was never rescinded, the 2nd defendant holds only an allotment letter still in the vendor's name, and between equal equities the first in time prevails. The 2nd defendant's bona fide purchaser defence fails absent a certificate of title.
Whether the agreement dated 3/3/2014 for the remaining ½ acre was binding
The agreement is binding; consideration was unspecified but the court assessed it at Kshs.175,000/= based on the earlier price per acre.
Clause 3 showed an offer to purchase the half acre 'to be agreed upon later'; time was not of essence and the 1st defendant frustrated completion by failing to give vacant possession. The court declined to rewrite the contract but examined the circumstances, holding land value remained constant so the half acre price equals half the earlier per-acre price of Kshs.350,000/=.
Bona fide purchaser for value without notice
The 2nd defendant cannot rely on the doctrine as he holds no certificate of title.
The court set out the seven requirements of the bona fide purchaser doctrine. The 2nd defendant holds only an allotment letter, which remains in the 1st defendant's name. Had he held title he would have been protected as proprietor unless registration was tainted by fraud, but on these facts equity cannot aid him.
Lack of Land Control Board consent
The point failed for want of evidence that the land was agricultural land subject to the Land Control Act.
The 2nd defendant raised lack of Land Control Board consent only at submission stage. No evidence was tendered at trial that the land was agricultural land subject to the Act; one cannot tell from the allotment letter alone. It was upon the 2nd defendant to table such evidence, which he did not.
Whether the 1st defendant's claim that part of the land sold was in Plot No. 1068 was proved
Rejected; the agreements all refer to Plot No. 1014 and no sale agreement with Maasai was produced.
The 1st defendant alleged he sold the plaintiff land in Plot No. 1068 bought from John Maasai. No sale agreement supported that assertion. The written agreements dated 4/7/2013, 15/10/2013 and 11/7/2013 all refer to Plot No. 1014, and the 1st defendant could not vary them orally; nor did he disclose the Plot No. 1068 claim to the purchasers at the time of sale.
Legal principles established
#- Between equal equities, the first in order of time shall prevail; the first sale is upheld and the second set aside.
- A purchaser cannot rely on the bona fide purchaser doctrine without a certificate of title; an allotment letter still in the vendor's name confers no such protection.
- Courts cannot re-write contracts for parties nor imply terms not in the contract.
Court orders
#- 1.An order that the agreement dated 4/7/2013 which was later amended on 15/10/2013 is upheld whereas that dated 11/7/2013 is hereby set aside
- 2.A declaration that there arose a binding agreement between the plaintiff and the 1st defendant for the sale of the remaining half (1/2) an acre portion of land pursuant to the negotiations leading to the agreement dated 3/3/2014
- 3.That the 1st defendant shall transfer to the plaintiff the whole parcel of land measuring 2.5 acres upon payment by the plaintiff of Kshs.175,000/= being the outstanding consideration for the ½ acre portion subject matter of the agreement dated 3/3/2014
- 4.A mandatory injunction compelling the 2nd defendant to remove himself and anyone claiming under him from the suit land forthwith
- 5.The defendants by themselves, through their agents, employees and/or servants are injuncted from encroaching, trespassing onto, wasting, ploughing, growing crops, fencing, erecting structures, or otherwise interfering with the plaintiff's use and quiet possession of Plot No. 1014 Kitalale Settlement Scheme measuring 2.5 acres
- 6.The costs of the suit to be borne by the defendants jointly and severally
- Jurisdiction invoked
- Environment and Land Court jurisdiction (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Sikuku Kones v Bashir Towet Chemasuet & another [2021] KEELC 3692 (KLR)", Case Analysis (2021). Not stated in judgment (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3692/eng@2021-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.