Oriri & 2 others v Ojwang & another (Environment and Land Appeal E009 of 2021) [2022] KEELC 3793 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Enforceability of the first sale agreement and payment of the purchase price
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respondent did not pay the full purchase price of Kshs 280,000; only Kshs 200,000 was received, and the agreement was rescinded by PExhibit 3, rendering it unenforceable
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 PExhibit 3 expressly rescinded PExhibit 1.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.
Indefeasibility of the 1st and 2nd appellants' title and the fraud claim
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
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.
Repudiation of the contract and remedies for breach
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
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.
Legal principles established
#- 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- A purchaser who fails to pay full consideration cannot enforce a rescinded agreement, and failure to take possession defeats constructive trust and equitable estoppel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
#- 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.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.The original suit mounted by way of a plaint dated May 19, 2014, be and is hereby dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.