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ELCPartially AllowedEnvironment and Land Court Appeal (Homa Bay), memorandum of appeal dated October 18, 2021, arising from Mbita Senior Principal Magistrate's Court Land Case No 8 of 2018· [2022] KEELC 3793 (KLR)

Oriri & 2 others v Ojwang & another (Environment and Land Appeal E009 of 2021) [2022] KEELC 3793 (KLR)

Environment and Land Court of Kenya
20 June 2022
3,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A land buyer who doesn't pay the full purchase price loses the deal in Kenya, and fraud claims against registered owners fail unless strictly proven.

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 Homa Bay (Ongondo J) against the judgment of Hon Japhet Bii (SRM) delivered on September 23, 2021 in Mbita Senior Principal Magistrate's Court Land Case No 8 of 2018. The trial court had granted the plaintiff (1st respondent) a permanent injunction against the 3rd appellant and 2nd respondent, declared him the rightful owner of LR No Kasgunga/Kamreri 4158, ordered cancellation of the 1st and 2nd appellants' registration as joint proprietors, and awarded costs. The suit property was a subdivision of LR No Kasigunga/Kamreri/756 in Homa Bay County. The appellants raised nine grounds, compressed into four clusters: enforceability of the first sale agreement and payment of the Kshs 280,000 purchase price; cancellation of the 1st and 2nd appellants' title under section 26(1) of the Land Registration Act; the alleged repudiation of the contract; and other available remedies. The court, revisiting the evidence as a first appellate court, found the 1st respondent had not paid the full purchase price, that PExhibit 3 had rescinded the sale agreement, and that he never took possession, defeating any claim of constructive trust or equitable estoppel. Fraud against the 1st and 2nd appellants' title was not strictly pleaded and proved; their acquisition was shown to be legal and unencumbered. The appeal was allowed, the trial judgment and decree set aside, and the original suit filed by plaint dated May 19, 2014 dismissed, with costs of both the appeal and the original suit borne by the respondents under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Enforceability of the first sale agreement and payment of the purchase price

Holding

The 1st respondent did not pay the full purchase price of Kshs 280,000; only Kshs 200,000 was received, and the agreement was rescinded by PExhibit 3, rendering it unenforceable

Reasoning

PW3 claimed he paid Kshs 280,000 but his own witness PW2 confirmed the 3rd appellant had not received that sum by the agreement date. DW2 testified she received only Kshs 200,000 through the bank. PW3 admitted his name did not appear on the mutation form and took no possession. PExhibit 3 expressly rescinded PExhibit 1. The trial magistrate's contrary finding was against the weight of the evidence.

p. 5
02

Indefeasibility of the 1st and 2nd appellants' title and the fraud claim

Holding

The 1st and 2nd appellants' registration was legal, formal and free from encumbrances; the fraud was not strictly pleaded and proved and their title could not be cancelled

Reasoning

The court applied sections 24, 25 and 26 of the Land Registration Act. Fraud must be strictly pleaded and proved per Kuria Kiarie and R G Patel v Lalji Makani. DExhibits 1 to 8, including land control board consent, proved lawful acquisition. The 1st respondent's claim of fraudulent resale therefore failed.

p. 6
03

Repudiation of the contract and remedies for breach

Holding

It was PW3 who repudiated the agreement, impliedly, by failing to settle the balance; other remedies such as part performance were not pleaded and could not be relied upon

Reasoning

PExhibit 3 disclosed an implied repudiation by PW3. Breach may be by non-performance or repudiation and gives rise to damages or other discretionary remedies, but part performance was never pleaded, and parties are bound by their pleadings per the Mutinda Mule and Sumaria authorities.

p. 7

Legal principles established

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  • An appellate court will not ordinarily interfere with findings of fact by the trial court unless founded on no evidence, misapprehension of it, or wrong principles
  • Allegations of fraud must be strictly pleaded and proved to a standard above mere balance of probabilities
  • Parties are bound by their pleadings
  • A purchaser who fails to pay full consideration cannot enforce a rescinded agreement, and failure to take possession defeats constructive trust and equitable estoppel

Court orders

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  1. 1.The appeal be allowed and the judgment of the learned trial magistrate delivered on September 23, 2021 together with all the consequential orders and decree, be set aside
  2. 2.By dint of the proviso to section 27(1) of the Civil Procedure Act, costs of this appeal and the original suit before the trial court to be borne by the respondents
  3. 3.The original suit mounted by way of a plaint dated May 19, 2014, be and is hereby dismissed

Authorities

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Legislation

  • Land Registration Actsection 26(1)
  • Land Registration Actsections 24, 25 and 26
  • Law of Contract Actsections 3(3) and 38(1)
  • Constitution of Kenya, 2010article 10(2)(b)
  • Constitution of Kenya, 2010article 40(1)
  • Constitution of Kenya, 2010articles 6(3) and 48
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 27(1) (proviso)
  • Black's Law Dictionary 10th Editionpage 236 and page 225 (breach of contract)

Cases cited (16)

  • Chon Jeuk Suk Kim and another v EJ Austin & 2 others
    (2013)eKLR
  • Alfred O Michira v Gesima Power Mills Ltd
    (2004)eKLR
  • Savings & Loan (K)Ltd v Kanyenje Karangaita Gakombe & another
    (2015)eKLR
  • Gurdev Singh Birdi & another v Abubakar Madhbuti
    (1996)eKLR
  • Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    (2018)eKLR
  • Gladys Wanjiru Ngacha v Theresa Chepsaat and 4 others
    (2013)eKLR
  • William Kipsoi Sigei v Kipkoech Arusei and another
    (2019) eKLR
  • Margaret Wanjiku v John Njoroge Gachuru
    2005eKLR
  • Independent Electoral and Boundaries Commission and another v Stephen Mutinda Mule and 3 others
    (2014) eKLR
  • R G Patel v Lalji Makani
    (1957) EA 304 at 317
  • Kuria Kiarie and 2 others v Sammy Magera
    (2018) eKLR
  • Munyu Maina v Hiram Gitiha
    (2013) eKLR
  • Moses Parantai and another v Stephen Njoroge Macharia
    (2020) eKLR
  • Samwel Kamere v Land Registrar, Kajiado
    (2015) eKLR
  • Sumaria and another v Allied Industries Ltd
    2007 2 KLR 1
On appeal from
Mbita Senior Principal Magistrate's Court
Land Case No 8 of 2018
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court; transfer of the suit for hearing under articles 6(3) and 48 of the Constitution of Kenya, 2010

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, "Oriri & 2 others v Ojwang & another (Environment and Land Appeal E009 of 2021) [2022] KEELC 3793 (KLR)", Case Analysis (2022). Environment and Land Court Appeal (Homa Bay), memorandum of appeal dated October 18, 2021, arising from Mbita Senior Principal Magistrate's Court Land Case No 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3793/eng@2022-06-20

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