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ELCDismissedELC Appeal No. 24 of 2021· [2022] KEELC 1699 (KLR)

Baron Mathenge Munyoki v Dedan Mbangula Kithusi [2022] KEELC 1699 (KLR)

Environment and Land Court
3 February 2022
8,816 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a land buyer who takes possession is protected even without a formal written agreement or Land Control Board consent.

What this practically means

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Executive summary

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The appellant, registered proprietor of Kyangwithya/Mulundi/2003, appealed against the judgment of the Chief Magistrate's Court at Kitui (CMCC No. 197 of 2013, Hon. M. Murage, 14th August 2018) which dismissed his claim for a declaration of absolute ownership and injunction, and allowed the respondent's counter-claim declaring that the appellant held 0.18 Ha of the title plus a 6-metre access road in trust for the respondent, to be transferred to him. The respondent had purchased the portion from Ndunga Maingi in 1984, taken possession, and completed payment of the purchase price to the deceased's widow and administratrix; he was nonetheless omitted when the succession devolved the original parcel to the appellant and it was subdivided. The ELC at Kitui first rejected the respondent's jurisdictional objection, holding that the High Court's transfer order stood until set aside and that the court had jurisdiction under Article 162(2) and Sections 13 and 16A of the ELC Act. On the merits, the court found no departure from the pleadings; held that the proviso to Section 3 of the Law of Contract Act preserves constructive trusts despite defects in the sale agreement; that lack of Land Control Board consent does not bar equitable relief; and that the respondent's possession was an overriding interest under Sections 25 and 28 of the Land Registration Act binding the appellant's title. The appeal was dismissed with costs to the respondent, affirming the trial court's judgment.

Key legal issues

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01

Jurisdiction of the ELC over an appeal originally filed in the High Court and transferred

Holding

The ELC has jurisdiction; the transfer order by the High Court stands and the objection was improperly raised in this court

Reasoning

The appeal concerns land, a matter reserved to the ELC under Article 162(2) and Sections 13 and 16A of the ELC Act. The Respondent did not appeal, review or set aside the High Court's transfer order, which remains valid until set aside by a competent court. This court cannot sit on appeal over that order and declines to abdicate its duty to hear a matter within its jurisdiction.

p. 5
02

Whether the trial court departed from the Respondent's pleadings

Holding

No; the trial court determined the matters pleaded - ownership, sale, possession and trust - and the ground fails

Reasoning

Parties are bound by their pleadings and courts cannot grant unpleaded remedies. The trial court framed the issue as whether the Plaintiff was absolute owner or the Defendant had a share, and decided it on the pleaded sale, possession and trust claims. The first appeal ground was therefore without merit.

p. 6
03

Whether the sale agreement was void under Section 3 of the Law of Contract Act

Holding

The trust claimed is exempt from the writing requirement under the proviso to Section 3; constructive trust applies

Reasoning

The proviso to Section 3 preserves resulting, implied and constructive trusts. The Respondent bought from the deceased, took possession, developed the land, and paid the balance to the widow/administrator who knew of his right. Common intention to sell and reliance were established, so a constructive trust arose despite formal defects in the agreement.

p. 7
04

Whether absence of Land Control Board consent voided the transaction

Holding

No; creation of a trust requires no LCB consent and equity applies despite lack of consent

Reasoning

Relying on Mwangi v Mwangi and Gatimu Kinguru v Muya Gathangi, creation of a trust over agricultural land is not a disposal requiring consent under Section 6(1) of the Land Control Act. Following Willy Kimutai Kitilit v Michael Kibet, lack of consent does not preclude equitable relief by way of constructive trust or proprietary estoppel.

p. 9
05

Whether the Appellant's registered title defeats the Respondent's rights

Holding

No; the Respondent's possession is an overriding interest, and the Appellant took title subject to it

Reasoning

Sections 25 and 28 of the Land Registration Act subject a proprietor's rights to trusts and to rights acquired under limitation law. The Respondent was in possession before the succession grant and subdivision; the Appellant ought to have carried out due diligence and took the land subject to existing rights, including those of the Respondent as bona fide purchaser in possession.

p. 8

Legal principles established

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  • An appeal from a trial court is by way of rehearing requiring re-evaluation of the evidence
  • The written-law requirement under Section 3 of the Law of Contract Act does not apply to transactions protected by constructive trust
  • Lack of Land Control Board consent does not preclude the court from giving effect to equitable principles such as constructive trust
  • Creation of a trust over agricultural land in a land control area does not require Land Control Board consent
  • Possession given under a sale agreement is an overriding interest binding a subsequent registered proprietor
  • An order of transfer by a competent court remains valid until set aside and cannot be collaterally attacked

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The judgment of the trial court allowing the counter-claim (declaration of trust over 0.18 Ha plus 6 metre access road and transfer of that portion) is upheld

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)
  • Environment and Land Court Act 2011Sections 13, 16A
  • Civil Procedure ActSection 18
  • Law of Contract ActSection 3
  • Land Registration Act 2012Sections 24, 25, 28
  • Land Control ActSections 6(1), 22
  • Law of Succession ActSections 45(1), 76
  • Probate and Administration RulesRule 44(1)
  • Limitation of Actions ActSection 7
  • Law Reform ActSection 2(1)
  • Registered Land Act (repealed)Sections 27, 28, 30, 126(1)
  • Land ActSection 38(2) (as referenced)
  • Appellate Jurisdiction ActOverriding Objective principles
  • Auctioneers ActCap. 526

Cases cited (21)

  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Kagenya vs Musramo & Another
    1968 E.A 48
  • Majola V. Nyoni
    (2014) ZEBHC
  • Hirani Ngaithe Githire V Wanjiku Munge
    (1979) KLR 50
  • Dominic Nthangathi & Another V Pauline Kathini Mulwa
    HC ELCA No. 3 of 2019
  • Ndykak Investment Ltd vs Joseph Itunga
    (2006) eKLR
  • Benjamin Gichana Mayieko T/A Benjamin Enterprises & 2 others vs Kenya Breweries Ltd
    (2013) eKLR
  • Wycliffe Mwangazi Kihungwa vs Grainbulk Handlers Ltd
    (2014) eKLR
  • Rob Delong & Another vs Charles Mureithi Wachira
    (2012) eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR, Civil Appeal 76 of 2014
  • Yaxley v. Gotts
    [2000] Ch. 162
  • Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others
    [2015] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Llyods Bank Plc vs Rosset
    (1991) 1 AC 107, 132
  • Steadman vs Steadman
    (1976) AC 536, 540
  • Hussey vs Palmer
    (1972) 3 All ER 744
  • Mwangi & another vs Mwangi
    (1986) KLR 328
  • Gatimu Kinguru vs Muya Gathangi
    (1976) KLR 253
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR, Civil Appeal 51 of 2015
  • Lilian 'S' vs Caltex Oil (Kenya) Ltd
    1989 KLR pp 14-15
On appeal from
Chief Magistrate's Court at Kitui
CMCC No. 197 of 2013
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and Sections 13 and 16A of the Environment and Land Court Act

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, "Baron Mathenge Munyoki v Dedan Mbangula Kithusi [2022] KEELC 1699 (KLR)", Case Analysis (2022). ELC Appeal No. 24 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1699/eng@2022-02-03

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