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ELCPartially AllowedCivil Case No 150 of 2017· [2022] KEELC 2364 (KLR)

Odongo v Wanyama & 3 others (Civil Case 150 of 2017) [2022] KEELC 2364 (KLR)

Environment and Land Court of Kenya
7 July 2022
6,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a land seller and a warned second buyer to refund a purchaser's Kshs.1,000,000, proving double-selling doesn't pay.

What this practically means

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Executive summary

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The Plaintiff sued for specific performance of a series of written agreements (May 2012 to 31st July 2013) under which he bought 8 acres out of L.R. Samia/Wakhungu-Odiado/487 from the 1st Defendant for Kshs.1,000,000, taking possession, fencing the land and paying survey fees for a subdivision. He alleged the 1st Defendant evaded procuring the Land Control Board consent to transfer and instead fraudulently sold and transferred the land to the 2nd Defendant, and that the 3rd (Land Registrar) and 4th Defendants conspired to remove his cautions. The 1st Defendant did not file a defence. The 2nd Defendant claimed to be a bona fide purchaser for value; the 3rd and 4th Defendants denied involvement. The court framed five issues and held: the Plaintiff's agreements complied with section 3 of the Law of Contract Act and were fully paid; the 2nd Defendant also had a valid agreement with the 1st Defendant; the absence of LCB consent did not automatically void the Plaintiff's transaction, applying Willy Kimutai Kitilit v Michael Kibet; fraud by the 1st Defendant was proved, as he contracted twice over the same parcel and completed only the second sale; and the 2nd Defendant was warned by the local assistant chief that the land was already sold yet proceeded, making her party to the fraud and disqualifying her from the bona fide purchaser doctrine. Allegations against the 3rd and 4th Defendants failed for want of proof. Specific performance was refused because the land was registered in and possessed by the 2nd Defendant; instead the court entered judgment for the Plaintiff against the 1st and 2nd Defendants jointly and severally, ordering a refund of Kshs.1,000,000 plus Kshs.8,000 survey fees with interest at court rates, apportioned 60:40 between them, payable within sixty days, with costs to the Plaintiff. Judgment delivered at Busia on 7th July 2022 by A. Omollo, J.

Key legal issues

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01

Validity of the sale agreements between the Plaintiff and the 1st Defendant

Holding

The agreements were in writing, signed by both parties and witnessed, complying with section 3 of the Law of Contract Act, and the Plaintiff paid the entire purchase price; the 1st Defendant was in breach

Reasoning

The court reviewed the series of written agreements dated May 2012 to July 2013 totalling Kshs.1,000,000 for 8 acres out of Samia/Wakhungu-Odiado/487. All were written, signed and witnessed. PW2 and PW3, who witnessed the payments and agreements, confirmed payment in full. There was no contrary evidence from the 1st Defendant, who never filed a defence.

p. 8
02

Effect of absence of Land Control Board consent on the Plaintiff's transaction

Holding

Lack of LCB consent alone does not void the agreement or strip the Plaintiff of his interest, since the transaction does not become automatically void and equity protects a party whose efforts to obtain consent were frustrated by the vendor

Reasoning

Following Willy Kimutai Kitilit v Michael Kibet, the court held the contract is not void from inception but only when no application for consent is made or consent is refused. The Plaintiff proved he took steps within his limits - signed consent and transfer forms, obtained consent to subdivide - but the 1st Defendant evaded presenting the forms. The court noted the statute allows extension of time, which the Plaintiff had sought.

p. 9
03

Fraud by the 1st Defendant

Holding

The 1st Defendant entered into two separate agreements over the same parcel and completed only the second, proving his intention to defraud the Plaintiff on a balance of probabilities

Reasoning

From documents produced by both sides it was evident the 1st Defendant contracted twice over the same land. He performed only the agreement with the 2nd Defendant and abandoned the Plaintiff's. Applying the principle that fraud is a question of evidence with the burden on the allegers, the court found the allegation against the 1st Defendant proved.

04

Whether the 2nd Defendant is a bona fide purchaser for value without notice

Holding

No - she was warned by the local administrator that the land had already been sold, yet proceeded with the purchase, making her a party to the fraud

Reasoning

PW2, the assistant chief, testified unchallenged that he warned the 2nd Defendant not to pay the 1st Defendant because the land was already sold. The 2nd Defendant admitted visiting the assistant chief's office. She also claimed she facilitated the subdivision, but the mutation form she produced was identical to the Plaintiff's, showing she obtained a form already prepared. She therefore could not invoke the bona fide purchaser doctrine.

p. 11
05

Allegations of fraud against the 3rd and 4th Defendants

Holding

Not proved; the Plaintiff himself was unsure who removed the cautions and no blame attaches to the 3rd and 4th Defendants

Reasoning

In cross-examination the Plaintiff conceded he was not sure the Land Registrar removed the cautions, that the Registrar said he did not know who removed them, and that the restriction on parcel 1948 had lapsed. The court found he did not specifically point out how the 3rd and 4th Defendants were involved and exonerated them.

Legal principles established

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  • A contract for the sale of land controlled under the Land Control Act is not void from inception; it becomes void only where no application for consent is made or consent is refused, and equity protects the party whose efforts to obtain consent were frustrated
  • Fraud must be pleaded and proved on a balance of probabilities; the burden lies on the party alleging it
  • A purchaser who proceeds with a transaction after being warned that the land was already sold becomes a party to the fraud and cannot rely on the bona fide purchaser doctrine
  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness present at signing

Court orders

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  1. 1.A declaration that the 1st Defendant is in breach of the sale agreement dated 31st July, 2013
  2. 2.The 1st and 2nd Defendants to refund to the Plaintiff in the ratio of 60:40 within sixty (60) days the purchase price of Kshs.1,000,000 together with survey fees of Kshs.8,000 plus interest at court rates from the date of filing of the suit until payment in full, in default execution to issue
  3. 3.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Law of Contract Actsection 3
  • Land Control Act, CAP 302section 6
  • Land Control Act, CAP 302section 7
  • Land Control Act, CAP 302section 8
  • Land Control Act, CAP 302section 9(2)
  • Land Registration Actsection 25
  • Land Registration Actsection 26
  • Evidence Actsection 112

Cases cited (8)

  • Katende Haridar & Company
  • Lawrence Mukiri & Attorney General & 4 others
    (2013) eKLR
  • Francis Ambeko Nyagambi vs. Angeline Moraa Amukoya
    Busia ELC No. 157 of 2014
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Nicholas Kioko Muoki & Another vs. Omar Feizal Mohammed
    (2021) eKLR
  • Peris Wanjiku Mukuru (suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Samuel Njoroge Macharia
    (2020) eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Paul Muira & Another v Jane Kendi Ikinyua & 2 others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2)(b) of the Constitution read with the Environment and Land Court Act); no specific provision cited in the judgment

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, "Odongo v Wanyama & 3 others (Civil Case 150 of 2017) [2022] KEELC 2364 (KLR)", Case Analysis (2022). Civil Case No 150 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2364/eng@2022-07-07

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