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ELCOtherMolo ELC Suit (Plaint dated 27th July, 2006)· [2021] KEELC 4123 (KLR)

Johana Kipkemoi Sang (suing as a personal representative of the Estate of Marambi Kipsang Ngasura (Deceased) v Roda Moige Koroso [2021] KEELC 4123 (KLR)

Environment and Land Court
17 February 2021
3,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered land transferred to a widow despite no Land Control Board consent, because fairness (a constructive trust) outweighed the missing approval.

What this practically means

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Executive summary

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The Plaintiff, personal representative of the estate of Marambi Kipsang Ngasura, sued for a permanent injunction against the Defendant, alleging trespass onto land parcel MOLO SOUTH/LANGWENDA/SET KOTES BLOCK 3 (SET KOTES) 22. The Defendant counterclaimed, seeking an order compelling transfer of 12.5 acres or, alternatively, a refund of Kshs. 500,000. Her late husband had agreed in 1997 to buy 28 acres for Kshs. 1,120,000, paying Kshs. 500,000 as deposit and taking possession before dying in 1998. The vendor then agreed to allocate 12.5 acres to the Defendant, equivalent to the deposit at Kshs. 40,000 per acre; she took possession, fenced the land and built a home. The court framed three issues: existence of the 1997 agreement, existence of the later verbal agreement for 12.5 acres, and the effect of absence of Land Control Board consent. It held the Plaintiff, not being privy to the 1997 agreement, could not allege its breach; that lack of consent was cured by equitable principles, particularly constructive trust, following Willy Kimutai Kitilit v Michael Kibet; and that the verbal agreement was not invalidated by Section 3(3) of the Law of Contract Act given subsection (7) and the constructive trust exemption. The Plaintiff's suit was dismissed and judgment entered on the counterclaim: the Plaintiff to transfer 12.5 acres within 30 days, failing which the Deputy Registrar to sign the transfer documents, with costs to the Defendant on both the suit and counterclaim.

Key legal issues

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01

Whether the 1997 sale agreement for 28 acres was breached/voided by non-payment of the balance

Holding

The Plaintiff, not being party to the agreement, cannot claim it was voided for breach; the vendor never terminated or sought to recover possession.

Reasoning

The court found the argument unfounded because the vendor took no step to terminate the agreement up to his death in 2001, having surrendered possession upon receiving the deposit. Relying on privity principles from Finance Corporation v Lengetia, the Plaintiff who was not a party could not plead the breach. Non-payment therefore did not void the transaction.

p. 4
02

Whether absence of Land Control Board consent was fatal

Holding

No - equity, particularly the doctrine of constructive trust, cures the absence of consent under Section 6 of the Land Control Act.

Reasoning

The court adopted the Court of Appeal's position in Willy Kimutai Kitilit v Michael Kibet that equitable principles apply notwithstanding lack of consent. Since possession had been surrendered to the purchaser after receipt of the deposit, a constructive trust arose in his favour, and the Plaintiff's objection based on consent could not defeat the Defendant's claim.

p. 4
03

Whether the verbal agreement for 12.5 acres contravened Section 3(3) of the Law of Contract Act

Holding

Section 3(3) did not apply to the 2001 verbal agreement, and constructive trust is exempted from the writing requirement.

Reasoning

The verbal agreement occurred around 2001, before commencement of the applicable version of section 3(3), which is saved by subsection (7) for prior agreements. Further, the 1990 amendment expressly excludes resulting, implied or constructive trusts from the writing requirement. A constructive trust having arisen from surrender of possession, the verbal agreement was enforceable.

p. 5

Legal principles established

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  • Lack of Land Control Board consent does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust.
  • A contract affects only parties to it and cannot be enforced by or against a person who was not a party.

Court orders

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  1. 1.An order compelling the Plaintiff to transfer to the Defendant 12 ½ acres of land parcel No. MOLO SOUTH LANGWENDA/SET KOTES/BLOCK 3 (SET KOTES) 22 within 30 days
  2. 2.Should the Plaintiff fail to transfer, the Deputy Registrar of the Court to sign the necessary documents to facilitate the transfer of the said portion by the Land Registrar, Nakuru
  3. 3.The Defendant to have the costs of the suit and the Counterclaim

Authorities

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Legislation

  • Land Control ActSection 6(1)(a)
  • Land Control ActSection 8
  • Law of Contract ActSection 3(3)
  • Law of Contract ActSection 3(7)

Cases cited (5)

  • Serah Njeri Mwobi vs John Kimani Njorioge
    [2013] eKLR
  • Finance Corporation vs Lengetia Limited
    (1984)
  • Shah Vs Guiders International Bank Ltd
    (2003) eKLR
  • Willy Kimtai Kitilit Vs Michael Kibet
    (2018) eKLR
  • Francis Munyoki Kilonzo Vs Francis Mutua Mutiso
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (Land Control Act, Law of Contract Act, Transfer of Property matters) - Environment and Land Court

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, "Johana Kipkemoi Sang (suing as a personal representative of the Estate of Marambi Kipsang Ngasura (Deceased) v Roda Moige Koroso [2021] KEELC 4123 (KLR)", Case Analysis (2021). Molo ELC Suit (Plaint dated 27th July, 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4123/eng@2021-02-17

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