Elizabeth Ndulu Mathuva v Joseph Mbiu Muthiani [2022] KEELC 1273 (KLR)

Section 3(3) of the Law of Contract Act requires a contract for disposition of an interest in land to be in writing, signed by all parties and attested by a witness present at signing. The agreement was neither executed by the vendor and purchaser nor attested by the named witnesses. The Defendant's explanation that signing awaited full payment of the purchase price has no basis in law. The provision is mandatory, and reliance on the Court of Appeal's reasoning in Jane Catherine Karani confirms non-compliance renders the agreement untenable.

The certificate of title showed registration of the Plaintiff on 19/01/2015 following a succession cause. Under Sections 24 and 25(1) of the Land Registration Act, registration vests absolute ownership, and under Section 26(1) the title is prima facie evidence of absolute and indefeasible ownership, challengeable only for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. No such evidence was adduced, so the Plaintiff proved ownership on a balance of probabilities.

Having found valid title, the Plaintiff is entitled to exclusive possession. The Defendant's claimed rights rested on the unenforceable sale agreement and an elders' decision; he neither proved a lawful interest nor filed a counterclaim for any refund of monies paid. His continued occupation therefore amounted to trespass justifying eviction as prayed in the Plaint.