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ELCOtherNot stated in extract (filed by Plaint dated 25/4/2017)· [2022] KEELC 3243 (KLR)

Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2022] KEELC 3243 (KLR)

Environment and Land Court
28 July 2022
3,911 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court enforced an oral land sale because the buyers paid most of the price, moved in, and built — cancelling a later fraudulent transfer.

What this practically means

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Executive summary

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The Plaintiffs sued for eviction of the Defendants from Limuru/Kamirithu/3214, a 0.07 ha subdivision of Limuru/Kamirithu/596, and a permanent injunction, asserting the 1st Plaintiff purchased the land from the 2nd Plaintiff following succession of the estate of Joshua Mbira Gathahu. The Defendants counterclaimed that they purchased the land in 1999 for Kshs. 400,000/- from the 2nd Plaintiff, paid Kshs. 300,000/- by banker's cheques, were put in possession, and developed a church and school valued at over Kshs. 50 million. They sought specific performance, cancellation of the transfer to the 1st Plaintiff, damages and injunction. At the hearing the Plaintiffs and their counsel did not attend, and the suit was dismissed for non-attendance and want of prosecution; the counterclaim proceeded by formal proof. The court found, on the unchallenged evidence, a valid oral sale acted upon by part payment and possession, exempted from the writing requirement of section 38 of the Land Act by equitable doctrines of constructive trust and proprietary estoppel. The transfer to the 1st Plaintiff, effected without due diligence while the Defendants were in open possession, was declared illegal, irregular and fraudulent, the 2nd Plaintiff having held the title in trust for the Defendants. The court granted specific performance compelling the 2nd Plaintiff to complete the sale on acceptance of Kshs. 100,000/-, cancelled the impugned title, ordered the Land Registrar to register the Defendants, issued a permanent injunction in their favour, and directed execution of transfer documents by the Deputy Registrar in default. General and aggravated damages were refused for failure to prove trespass, and no orders as to costs were made. Judgment delivered at Thika on 28 July 2022 by J G Kemei, Judge.

Key legal issues

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01

Existence of a valid sale despite absence of written contract

Holding

The court found a valid sale existed based on part payment by banker's cheques, delivery of possession in 1999/2000, extensive development, and the pattern of similar sales by the family

Reasoning

Although section 38 of the Land Act requires contracts for disposition of land to be in writing, the court applied the common law rule that an oral agreement acted upon is as valid as a written one. The Defendants paid Kshs. 300,000/- of Kshs. 400,000/-, were put in possession, fenced the land and built a church and school. The lease theory advanced by the Plaintiffs was unsupported by evidence, and the surrounding family sales reinforced that the transaction was a sale.

p. 5
02

Validity of the transfer of the suit land to the 1st Plaintiff

Holding

The transfer was declared illegal, irregular and fraudulent; the 2nd Plaintiff held the title in constructive trust for the Defendants and conveyed no interest

Reasoning

Having already relinquished his interest upon the sale and part payment, the 2nd Plaintiff transferred nothing to the 1st Plaintiff. The 1st Plaintiff, living 100 metres away and a family member, failed to conduct due diligence and must have known of the Defendants' possession and developments. Equity, via the doctrine of constructive trust and proprietary estoppel, protects the Defendants' interest against the registered title.

p. 6
03

Entitlement to specific performance

Holding

Specific performance was granted as the Defendants were ready, willing and able to complete while the 2nd Plaintiff sought to defeat their interest

Reasoning

Specific performance is discretionary and requires a valid enforceable contract. Here the Defendants tendered readiness to pay the balance of Kshs. 100,000/-, while the 2nd Plaintiff wilfully declined to transfer and instead transferred the property to his brother. Equity regards as done that which ought to be done, and damages were not an adequate remedy given the Defendants' possession and developments.

p. 7
04

General and aggravated damages

Holding

Refused for failure to prove trespass and quantify damages

Reasoning

Although claimed in the counterclaim, the Defendants did not prove trespass nor adduce evidence demonstrating the level of damages suffered. The equitable relief of specific performance and cancellation of the impugned transfer sufficed to do justice between the parties.

p. 7

Legal principles established

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  • An oral agreement for the sale of land that has been acted upon and part-performed is enforceable in equity notwithstanding lack of writing
  • A registered proprietor who has sold land and received part payment holds the title in constructive trust for the purchaser in possession
  • A party who stands by while the other incurs expense on the faith of an agreement cannot later assert it is unenforceable

Court orders

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  1. 1.An order for specific performance compelling the 2nd Plaintiff to complete the sale and accept the balance of purchase price in the sum of Kshs. 100,000/-.
  2. 2.A declaration that the transfer of Limuru/Kamirithu 3214 to the 1st Plaintiff was illegal, irregular and fraudulent and the said title to the 1st Plaintiff is hereby cancelled forthwith.
  3. 3.The County Land Registrar Kiambu do cancel the title entries of Limuru/Kamirithu 3214 as currently entered or issued and substitute it with the name of the Defendants in place of the 1st Plaintiff.
  4. 4.A permanent injunction restraining the Plaintiffs from interfering with the Defendants' quiet enjoyment, possession and construction of the suit property or from evicting the Defendants.
  5. 5.In the alternative, the Plaintiffs do execute the transfer documents, in default the Deputy Registrar of the Environment and Land Court at Thika to execute the title documents in favour of the Defendants.
  6. 6.No orders as to costs.

Authorities

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Legislation

  • Land ActSection 38(1) and (2)
  • Registered Land Act (repealed)Section 25; Section 30(g)
  • Land Control ActReferenced generally
  • Constitution of KenyaReferenced as enshrining equitable remedies of estoppel and trust

Cases cited (5)

  • Mwangi & Another vs. Mwangi
    (1986) KLR 328
  • Steadman vs. Steadman
    (1976) AC 536, 540
  • Willy Kimutai Kitilit vs. Michael Kibet
    (2018) eKLR
  • William Kipsoi Sigei vs. Kipkoech Arusei & Another
    [2019] eKLR
  • Joyce Mugure Mwangi & 7 others Vs Joachim Ngugi Kiarie & 16 others
    (2019) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land Limuru/Kamirithu/3214

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2022] KEELC 3243 (KLR)", Case Analysis (2022). Not stated in extract (filed by Plaint dated 25/4/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3243/eng@2022-07-28

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