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ELCDismissedELC Appeal No. 002 of 2020· [2022] KEELC 1969 (KLR)

Lilian Mosonik & another v Management Committee of AGC Riverside Church [2022] KEELC 1969 (KLR)

Environment and Land Court
25 January 2022
MOM.C. Oundo
7,124 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a land buyer in actual possession can sue trespassers even before transfer is registered.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kericho against the judgment of the Chief Magistrate in CMC ELC No. 46 of 2018, in which the trial court found that the Respondent church had proved its case on a balance of probabilities and confirmed injunctive orders restraining the Defendants (now Appellants) from interfering with its possession of a 100 by 100 feet portion of parcel Kericho/Silibwet/1778. The Appellants, beneficiaries of the estate of the deceased registered owner Pauline Chemalel Henstridge, raised grounds on locus standi, want of Land Control Board consent, limitation, and the threshold for injunctive relief. The court, as a first appellate court, re-evaluated the evidence. It found the sale agreements written, signed and attested in conformity with Section 3(3) of the Law of Contract Act, and concluded the Respondent occupied the land as purchaser, not tenant. It construed Sections 8 and 9(2) of the Land Control Act to hold that voidness arises upon refusal of an application for consent, not mere non-procurement. On standing, applying Section 10 of the Trespass Act and Winfield and Jolowicz, it held occupation suffices to sue in trespass, and continuing trespass defeats a limitation defence. The appeal was dismissed with costs to the Respondent, the trial judgment affirmed.

Key legal issues

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01

Whether the Respondent occupied the suit land as purchaser or tenant

Holding

The Respondent took possession and occupied as purchaser under a valid written sale agreement; the defence of tenancy was destroyed by the sale agreements

Reasoning

The court examined the sale agreements (Pf exh 1(a)-(d)) evidencing payment of Ksh 410,000/= of the agreed Ksh 500,000/=, together with minutes of a meeting of 20th August 2012 at which the deceased confirmed the sale. The agreements conformed to Section 3(3) of the Law of Contract Act, being written, signed and attested, and the deceased as registered proprietor had title to pass.

p. 6
02

Whether the sale was null and void for lack of Land Control Board consent

Holding

Voidness under Section 9(2) of the Land Control Act arises from refusal of an application for consent, not mere non-procurement; no evidence showed an application was made and refused, so the agreement could not be declared void

Reasoning

The court construed Sections 8(1) and 9(2) of the Land Control Act and held that it is the refusal of an application for consent, not the failure to obtain consent per se, that voids a controlled transaction. Since no evidence established that consent was sought and denied, voidness could not be pronounced. The court also relied on Willy Kimutai Kitilit v Michael Kibet but declined to make a definitive finding on the point as the claim was in trespass, not ownership.

p. 7
03

Whether occupation confers standing to sue in trespass and whether letters of administration were required

Holding

An occupier in possession may sue in trespass without being proprietor; since the claim was in trespass and not ownership, lack of letters of administration did not defeat locus standi

Reasoning

Relying on Section 10 of the Trespass Act, Black's Law Dictionary and Winfield and Jolowicz on Tort, the court held that possession in fact suffices to maintain trespass, and a defendant cannot rely on jus tertii without the possessor's authority. Continuing trespass also defeats a limitation defence. The Respondent, in occupation since 2007 and in possession under the sale agreement, had a sufficient interest to sue the Appellants as trespassers.

p. 8

Legal principles established

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  • A contract for sale of land subject to the Land Control Act is not void from inception; it becomes void only where an application for consent is refused (or no application made) and any appeal dismissed
  • Possession/occupation of land is sufficient to maintain a suit for trespass; the occupier need not be the registered proprietor
  • A continuing trespass gives rise to a fresh cause of action from day to day, so a suit founded on continuing trespass is not statute barred
  • A first appellate court must reconsider and assess the evidence and make its own conclusions

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Law of Succession ActSections 45(1), 79, 82(a)
  • Civil Procedure ActSection 2
  • Land Control ActSections 6(1), 8, 8(1), 9(2), 11, 13
  • Limitation of Actions ActSection 4(a)
  • Law of Contract ActSection 3(3)
  • Trespass ActSections 3(1), 10
  • Registered Lands Act (Cap 300) (repealed)
  • Civil Procedure RulesOrder 40

Cases cited (10)

  • Re Estate of John Gakunga Njoroge
    [2015] eKLR
  • Willy Kimutai Kitilit vs Michael Kibet
    [2018] eKLR
  • Richard Toroitich vs Mike K Lemlet & 3 Others
    [2014] eKLR
  • Giella vs Cassman Brown
    [1973] EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Nguruman Limited vs Shompole Group Ranch & 3 Others
    [2007] eKLR
  • Seascapes Ltd v Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Kulwant Singh Chadha v Kenya Airport Authority & 2 Others
    [2017] eKLR
  • Samuel Mwangi vs Jeremiah M'itobu
    [2012] eKLR
On appeal from
Kericho Chief Magistrate's Court
CMC ELC No. 46 of 2018 (PMCC No. 16 of 2018)
Jurisdiction invoked
First appellate jurisdiction over appeals from the Chief Magistrate's Court (Environment and Land matters)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Lilian Mosonik & another v Management Committee of AGC Riverside Church [2022] KEELC 1969 (KLR)", Case Analysis (2022). ELC Appeal No. 002 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1969/eng@2022-01-25

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