Kamande & another (Suing as the Secretary and Treasurer of Kiamura Self Help Group and in representative Capacity on behalf of 9 other Plaintiffs as per authority to file suit filed Herewith) v Alldays Limited & 3 others (Environment & Land Case 454 of 2017) [2022] KEELC 3695 (KLR)
The bottom line
#A Kenyan court ordered a deceased landowner's estate to transfer 17 Mavoko plots to families who bought them years ago, even without written sale agreements.
What this practically means
#Executive summary
#Key legal issues
#Whether valid contracts existed between the Plaintiffs and the deceased's estate despite the absence of written Sale Agreements
An implied contract existed between the administrators of the deceased's estate and the Plaintiffs
The court relied on authority that not all agreements must be in writing and that contract is determined objectively from words and conduct. The deceased sold the lands through agents PW1 and PW6, receipts were issued, and the Defendants continued receiving balances of the purchase price after the deceased's demise, including via bankers' cheques into the 1st Defendant's account. The defence of absence of written agreements amounted to mere denials and could not defeat the implied contract.
Whether the agency agreement between the deceased and PW1 and PW6 bound the Defendants as administrators
The agency agreement was valid and the administrators could not escape it
The deceased gave PW1 and PW6 receipt books and authority letters dated 18th March 2005 and 31st August 2007 to conclude sales and collect balances. The Defendants' witness admitted knowledge of these arrangements. Having received monies through the agents and even issued a certificate of title to PW1 after the father's demise, the administrators were bound by the agency and could not resile from it.
Burden of proof regarding payment of the purchase price
The court shifted the burden of proof to the Defendants as administrators who had access to the deceased's and the 1st Defendant's bank statements
The Defendants complained that the Plaintiffs had not produced the deceased's bank statements to prove payments. The court held that only the administrators, who controlled the estate and the 1st Defendant's records, could obtain those statements, and it was their duty to furnish them to the court; their failure justified shifting the burden to them.
Whether a constructive trust arose in favour of the Plaintiffs
A constructive trust was created between the Plaintiffs and the deceased's estate
Following Willy Kimutai Kitilit v Michael Kibet, and given that the Plaintiffs were in possession of the suit lands and had paid or substantially paid the purchase price through the deceased's agents, the court held that a constructive trust arose, obliging the Defendants as administrators to transfer the respective portions to the Plaintiffs.
Whether the suit lands were available for distribution to beneficiaries and third parties
The suit lands were not available for distribution because the Plaintiffs were creditors of the estate
The court found the deceased commenced selling the suit lands before his demise and received funds, yet the Defendants failed to disclose to the succession court that the Plaintiffs were creditors of the estate. Under the Law of Succession Act, the suit lands were therefore not available for distribution to the Defendants or third parties.
Legal principles established
#- There is no general rule of law that all agreements must be in writing; only certain specific agreements must be in writing (Section 3(1) of the Law of Contract Act being one such provision).
- Whether a binding contract exists depends on an objective appraisal of what was communicated between the parties by words or conduct, not their subjective state of mind.
- A party who stands by and lets another incur expense or prejudice his position on the faith of an agreement cannot later assert that the agreement is unenforceable.
- Where purchasers of land are in possession and have paid purchase price, a constructive trust may be created in their favour even absent a written sale agreement.
Court orders
#- 1.A permanent injunction restraining the Defendants, their agents, kin, servants, workers and anyone claiming under them from trespassing, harassing, evicting, disposing of, selling, double allocating, charging or in any other manner interfering with the Plaintiffs' quiet use, possession and occupation of the suit lands (Mavoko Town Block 2/1392, 1483, 1378, 1379, 1380, 1361, 1359, 1362, 1363, 1360, 1440, 1481, 1482, 1486, 1394, 1395 and 1396)
- 2.The Defendants directed to effect transfer of the suit lands to the various Plaintiffs as itemized within ninety (90) days, failing which the Deputy Registrar of the Environment and Land Court to execute all necessary consents and conveyance documents to effect transfer and registration of each parcel in the name of the respective Plaintiff
- 3.Costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes (suit lands at Mavoko Town Block 2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande & another (Suing as the Secretary and Treasurer of Kiamura Self Help Group and in representative Capacity on behalf of 9 other Plaintiffs as per authority to file suit filed Herewith) v Alldays Limited & 3 others (Environment & Land Case 454 of 2017) [2022] KEELC 3695 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3695/eng@2022-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.