Johana Kipkemoi Sang (suing as a personal representative of the Estate of Marambi Kipsang Ngasura (Deceased) v Roda Moige Koroso [2021] KEELC 4123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1997 sale agreement for 28 acres was breached/voided by non-payment of the balance
The Plaintiff, not being party to the agreement, cannot claim it was voided for breach; the vendor never terminated or sought to recover possession.
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.
Whether absence of Land Control Board consent was fatal
No - equity, particularly the doctrine of constructive trust, cures the absence of consent under Section 6 of the Land Control Act.
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.
Whether the verbal agreement for 12.5 acres contravened Section 3(3) of the Law of Contract Act
Section 3(3) did not apply to the 2001 verbal agreement, and constructive trust is exempted from the writing requirement.
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.
Legal principles established
#- 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
#- 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.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.The Defendant to have the costs of the suit and the Counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.