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ELCAllowedELC Case No. 423 of 2013· [2022] KEELC 1479 (KLR)

Robert Kiptanui Kitur v Jackson Kiprotich Kitur [2022] KEELC 1479 (KLR)

Environment and Land Court
9 February 2022
4,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret ordered a seller to complete a 2007 land sale, ruling the buyer's claim was not time-barred.

What this practically means

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Executive summary

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The plaintiff sued for specific performance of a sale agreement dated 3rd January 2007 over Eldoret Municipality Block 14/400, purchased for Kshs.1,400,000 with a Kshs.1,000,000 deposit paid by bankers' cheque. He took possession and cultivated the land, but the defendant refused to complete, denying the agreement, alleging forgery and fraud, and asserting the plaintiff's occupation was trespass. The defendant later applied by notice of motion dated 28th October 2021 to strike out the suit as time barred under section 4(1)(a) of the Limitation of Actions Act. The court framed three issues: limitation, entitlement to specific performance, and costs. On limitation, it held that a cause of action in contract accrues on breach, and more decisively that the claim is founded on the plaintiff's possession and equitable interest in the land, falling under section 7 rather than section 4(1)(a) of the Limitation of Actions Act; the application was dismissed with costs. On the merits, the advocate who drafted and witnessed the agreement confirmed its authenticity and the defendant's receipt of the deposit, and the defendant's forgery and fraud allegations were unparticularised and unproved, despite an adjournment for a document examiner's report that was never tendered. The agreement satisfied section 3(3) of the Law of Contract Act, and damages were inadequate given the land's appreciation from Kshs.1.4 million to an unchallenged estimate of Kshs.15 million. Finding the Kshs.400,000 balance unpaid, the court ordered specific performance conditioned on the plaintiff paying or depositing that balance, provided for execution by the Deputy Registrar if the defendant defaulted, and awarded the plaintiff costs.

Key legal issues

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01

Whether the suit is time barred under section 4(1)(a) of the Limitation of Actions Act

Holding

The suit is not time barred; the claim falls under section 7 of the Limitation of Actions Act as a claim for recovery of land founded on possession and equitable interest, not purely on contract

Reasoning

Paragraph 5 of the sale agreement made completion contingent on the vendor obtaining rates and rent clearances by 31st August 2007, so any breach accrued then or later. More fundamentally, the claim is rooted in the plaintiff's possession and equitable interest, not merely contract. Authority holds an agreement for sale of land gives rise to a cause of action for recovery of land, hence section 4(1)(a) is inapplicable and the striking-out application fails.

p. 3
02

Whether the sale agreement of 3rd January 2007 is valid and enforceable

Holding

The agreement is valid and enforceable; the defendant's allegations of forgery and fraud were not proved

Reasoning

The advocate who drafted and witnessed the agreement (PW4) confirmed its authenticity and retained the original title. The defendant admitted Kshs.1,000,000 was credited to his account but offered no explanation, made no report to the bank or police, and never produced the promised document examiner's report. Fraud must be pleaded with particulars and proved to a standard above balance of probabilities; the defendant discharged neither duty.

p. 4
03

Whether specific performance should be granted

Holding

Specific performance is granted because the contract is valid and damages are not an adequate remedy, land having appreciated from Kshs.1.4 million to an unchallenged estimate of Kshs.15 million

Reasoning

Applying the settled two-limb test, the agreement complies with section 3(3) of the Law of Contract Act and the claim has merit. Damages are inadequate because land is unique and appreciated substantially, and the plaintiff could not readily obtain an equivalent elsewhere. The plaintiff was always willing to pay the balance upon receipt of clearances the defendant never provided.

p. 4
04

Whether the outstanding balance of Kshs.400,000 was paid

Holding

The court found the balance of Kshs.400,000 had not been received by the defendant and made payment a condition precedent to the specific performance orders

Reasoning

Although the plaintiff alluded to a bankers' cheque for the balance in cross-examination, he produced no copy of the cheque or bank statement confirming deposit, and testified he was willing to pay the balance upon receipt of rates and rent clearances. The court therefore conditioned the orders on payment or deposit of the balance.

p. 4

Legal principles established

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  • A cause of action in contract accrues on breach, not on execution of the contract
  • A party who executes an agreement over land and takes possession acquires an equitable interest protected by law
  • An agreement for sale of land gives rise to a cause of action for recovery of the land rather than a cause of action in contract, so section 4(1)(a) of the Limitation of Actions Act does not apply

Court orders

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  1. 1.An order of specific performance compelling the Defendant to surrender the original certificate of lease in respect of Eldoret Municipality Block 14/400, execute the transfer documents and hand them over to the plaintiff upon payment of the balance of Kshs.400,000
  2. 2.Should the defendant decline the balance of Kshs.400,000, the plaintiff be at liberty to deposit the amount with the court for onwards transmission to the defendant
  3. 3.Should the defendant decline to execute the documents, the same be signed by the Deputy Registrar of the court upon satisfaction that the balance has been paid or deposited with the court
  4. 4.The defendant to pay the costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(b)/3(3)
  • Limitation of Actions Act, Chapter 22 of Laws of KenyaSections 4(1)(a), 7, 18, 20(1)
  • Evidence Act Chapter 80 of Laws of KenyaSection 107
  • Civil Procedure Act chapter 21 of Laws of KenyaSection 27

Cases cited (7)

  • DIANA KATUMBI KIIO V REUBEN MUSYOKI MULI
    [2018] eKLR
  • PETER MBIRI MICHUKI VS SAMUEL MUGO MICHUKI
    [2014] eKLR
  • Mwangi & Another vs Mwangi
    (1986) KLR 328
  • HEBISIABAH MORAA ONDIEKI & 3 OTHERS V EDWARD O. OKUL & ANOTHER
    [2021] eKLR
  • GODFREY NGATIA NJOROGE V JAMES NDUNGU MUNGAI
    [2019] eKLR
  • NELSON KIVUVANI VS. YUDA KOMORA & ANOTHER
    Nairobi HCCC No.956 of 1991
  • RELIABLE ELECTRICAL ENGINEERS (K) LTD Vs MANTRAC KENYA LIMITED
    [2006] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land, Eldoret Municipality Block 14/400

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robert Kiptanui Kitur v Jackson Kiprotich Kitur [2022] KEELC 1479 (KLR)", Case Analysis (2022). ELC Case No. 423 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1479/eng@2022-02-09

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