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ELCPartially AllowedNot stated in judgment· [2022] KEELC 317 (KLR)

Charles Gatonye Gichinga v Waititu Ole Sayiore & Kenya Electricity Transmission Company Limited (Environment & Land Case 752 of 2017) [2022] KEELC 317 (KLR)

Environment and Land Court
20 April 2022
MGM.N. Gicheru
1,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A buyer who paid in full and occupied land for decades won transfer of two acres, but lost his claim to five because he could not prove the bigger deal.

What this practically means

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Executive summary

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The Plaintiff sued the first Defendant, from whom he alleged he bought five acres of former Land Number 9 Empakasi Ranching in 1984 for Kshs. 25,400/-, seeking a declaration of ownership of the five acres or, alternatively, Kshs. 25 million as market value, and an order barring the second Defendant (KETRACO) from making compensation payments to the first Defendant pending determination. The first Defendant admitted selling only two acres for Kshs. 16,000/-. The second Defendant denied liability, stating the Plaintiff was not the registered owner of the land traversed by its power lines. The court framed four issues: the acreage bought, the acreage occupied, the claim against the second Defendant, and whether adverse possession or constructive trust applied. It found the sale agreement proved only two acres, the addendum extending it to five being inadequately proved and disputed; the extent of occupation was likewise unproved. No justiciable claim lay against the second Defendant, which had properly compensated the registered owner and had compensated the Plaintiff for crops. Applying Macharia Mwangi Maina v Davidson Mwangi Kagiri and Willy Kimutai Kitilit v Michael Kibet, the court held that although the Land Control Board consent was missing, the fully paid-for and occupied two acres were enforceable under a constructive trust. Judgment was entered against the first Defendant for transfer of the two acres, with the Deputy Registrar empowered to execute documents on default. Costs were awarded to the Plaintiff and the second Defendant.

Key legal issues

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01

Extent of land sold in 1984

Holding

Plaintiff bought two acres, not five

Reasoning

The sale agreement of 5/7/1984 was for two acres. The addendum purporting to increase the acreage to five was disputed by the first Defendant and the Plaintiff offered no adequate explanation for the absence of a further agreement for the extra land. The Plaintiff also failed to prove by documentary or oral evidence the actual extent of his occupation.

p. 2
02

Claim against the second Defendant (KETRACO)

Holding

No justiciable claim; the second Defendant rightly compensated the registered owner and the Plaintiff was compensated for crops

Reasoning

The Plaintiff is not the registered owner of the land through which the power lines pass. The second Defendant gave a good explanation for paying compensation to the first Defendant, and it was proved that the Plaintiff was separately compensated for his crops. No obligation to the Plaintiff was established.

p. 2
03

Applicable doctrine: adverse possession vs constructive trust

Holding

Constructive trust applies in favour of the Plaintiff for the two undisputed acres

Reasoning

The Plaintiff paid the full purchase price for the two acres and has been in actual possession since 1984. The transaction lacked Land Control Board consent and a transfer instrument, but recent Kenyan jurisprudence permits enforcement of such controlled transactions through the equitable doctrine of constructive trust. Adverse possession was not the applicable route.

p. 2

Legal principles established

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  • A controlled transaction lacking Land Control Board consent can be enforced under the equitable doctrine of constructive trust where the purchaser has paid the full purchase price and is in actual possession

Court orders

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  1. 1.The first Defendant to transfer 2 acres of land from former Land Number 9 Empakasi Ranching to the Plaintiff, failing which the Deputy Registrar will execute all necessary documents to effect the transfer
  2. 2.Costs to the Plaintiff and the second Defendant

Authorities

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Legislation

  • Land Control ActConsent requirements for controlled transactions (as discussed)

Cases cited (2)

  • Macharia Mwangi Maina and 87 others –vs- Davidson Mwangi Kagiri
    (2014) eKLR
  • Willy Kimutai Kitilit –versus- Michael Kibet
    Civil Appeal No. 51 of 2015 (2018) eKLR
Jurisdiction invoked
Not expressly stated; original civil jurisdiction of the Environment and Land Court over a dispute relating to 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, "Charles Gatonye Gichinga v Waititu Ole Sayiore & Kenya Electricity Transmission Company Limited (Environment & Land Case 752 of 2017) [2022] KEELC 317 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/317/eng@2022-04-20

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