Leah Wanjiku Gichobi v Bilha Wanjiku Karonjo (Sued on her behalf and as the Administratrix/Administrator of the Estate of the late Moses Karonjo Gathigo alias Karonjo Gathingo) & another [2022] KEELC 1237 (KLR)
The bottom line
#A buyer who paid in full, got land board consent, and occupied land openly for decades won it through a constructive trust despite a 42-year delay.
What this practically means
#Executive summary
#Key legal issues
#Validity and enforceability of the 1978 sale agreement
The agreement was valid and enforceable; the deceased sold the land, received the full purchase price of Kshs. 30,000, obtained land control consent and gave the plaintiff vacant possession
The court examined the sale agreement (Plaintiff's Exhibit 3), the Land Control Board consent of 31st May 1978, and the plaintiff's open occupation, cultivation and development since 1978 including burial of her husband without objection. The defendants did not dispute the deceased's signature and were aware of the occupation, so their denial of the agreement was rejected.
Whether delay defeats the claim for specific performance
Although there was delay, the plaintiff satisfactorily explained it: the title had been charged to AFC and she took steps during and after the deceased's lifetime, including summons for rectification of grant in the succession cause
The court accepted the defendants' submission that there was delay, but found the delay explained. The plaintiff was not involved in the succession proceedings and filed summons for rectification of grant; the succession ruling preserved the land for prosecution before a court with jurisdiction. The defendants were held not to be innocent parties unaware of the sale.
Whether the plaintiff is entitled to the land under constructive trust
Yes. A constructive trust arose in favour of the plaintiff because the deceased received the full purchase price, obtained consent and delivered vacant possession, with open occupation since 1978
Relying on Section 28 of the Land Registration Act (trusts as overriding interests) and the Court of Appeal's exposition of constructive and resulting trusts in Twalib Hatayan, the court found the deceased's conduct - valid sale, receipt of full purchase price, consent application, and delivery of possession - created a constructive trust that the defendants, as successors and beneficiaries of the estate, cannot escape.
Legal principles established
#- A purchaser of land who has paid the full purchase price, obtained land control board consent and taken vacant possession, occupying openly and without interruption, acquires an interest in the land enforceable as a constructive trust against the registered owner and his successors
Court orders
#- 1.A declaration that the plaintiff is entitled to the whole of title number Mutira/Kangai/714 by way of constructive trust
- 2.An order compelling the defendants to transfer the whole of the title number Mutira/Kangai/714 to the plaintiff
- 3.In default of transfer by the defendants, the Deputy Registrar of the court to execute all necessary documents for transfer of the title from the name of the late MOSES KARONJO GATHINGO alias KARONJO GATHINGO to the plaintiff
- 4.Costs of the suit and interest to be borne by the defendants jointly and severally
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leah Wanjiku Gichobi v Bilha Wanjiku Karonjo (Sued on her behalf and as the Administratrix/Administrator of the Estate of the late Moses Karonjo Gathigo alias Karonjo Gathingo) & another [2022] KEELC 1237 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1237/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.