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ELCAllowedBusia Chief Magistrate's Court Environment and Land Case No E01 of 2021 (Appeal)· [2022] KEELC 3801 (KLR)

Odunga (Suing as the administratrix of the Estate of Joshua Otieno alias Josiah Odunga Omondi) v Barasa & 9 others (Environment and Land Appeal E001 of 2021) [2022] KEELC 3801 (KLR)

Environment and Land Court
29 June 2022
4,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that long, peaceful occupation of bought land can prove ownership even without a written sale agreement.

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 Busia against the judgment of Hon PY Kulecho SRM delivered on February 8, 2021 in Busia CMCC ELC Case No E01 of 2021, dismissing the Appellant's claim as administratrix of her late husband's estate for a declaration of ownership, permanent injunction and an order compelling transfer of a 6-acre portion of LR Bukhayo/Malanga/541 allegedly purchased in 1977. The trial court had held the claim failed for want of a written sale agreement under section 3(3) of the Law of Contract Act, and had also set aside on its own motion a consent order the Appellant had recorded with the 1st and 2nd Respondents, on the basis that it enabled intermeddling with the deceased vendor's estate. On appeal, Omollo J held that the law applicable to a 1977 agreement was the 1968 amendment to section 3(3), whose proviso preserved suits founded on oral contracts proved by part performance; the Appellant's occupation since 1977 was admitted and supported by the 1977 Land Control Board application and consent. The court further held that a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract, that the 1st and 2nd Respondents were entitled to admit the claim, and that their undertaking to 'facilitate' transfer did not constitute intermeddling. The court found the Appellant acquired an interest first under contract, later ripening into adverse possession, allowed the appeal, set aside the dismissal, substituted judgment allowing the reliefs in the plaint, and awarded the Appellant costs in both courts.

Key legal issues

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01

Applicable law for the 1977 land sale agreement

Holding

The trial court misdirected itself by applying the 1990 amendment; the 1968 proviso applied, permitting proof of an oral contract by part performance.

Reasoning

The sale was alleged to have occurred in 1977. Section 3(3) as amended in 1990 required written agreements, but the law in force in 1977 was the 1968 amendment whose proviso preserved suits where a purchaser had taken or continued possession in part performance. The Respondents admitted the Appellant's possession since 1977, satisfying part performance, so the absence of a written agreement did not defeat the claim.

p. 6
02

Whether the trial court could set aside the consent order on its own motion

Holding

The setting aside of the consent order was a misapprehension of the law; the 1st and 2nd Respondents were entitled to admit the claim and were not intermeddling with the estate.

Reasoning

A consent order has contractual effect and may only be set aside on grounds justifying setting aside a contract, e.g. fraud or collusion, none of which was proved. The 1st and 2nd Respondents were properly sued as defendants and could admit the claim; their undertaking merely to facilitate transfer did not amount to intermeddling, and their execution of the consent did not deprive co-defendants of the right to defend the suit.

p. 7
03

Whether the Appellant proved an interest in the suit property

Holding

Yes; the Appellant proved contractual rights over the 6 acres which matured into title by adverse possession after the lapse of the statutory period.

Reasoning

The 1977 Land Control Board application and consent evidenced the vendor's intention to subdivide and transfer 6 acres. Occupation since 1977 was admitted even by opposing witnesses, who disputed only the acreage. The court held the interest arose first under contract and ripened into adverse possession on expiry of six years, well before the suit was filed in 2021.

p. 8

Legal principles established

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  • The law applicable to a contract is the law in force at the time the contract was made; the 1968 proviso to section 3(3) of the Law of Contract Act saves oral land sale agreements accompanied by part performance.
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.

Court orders

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  1. 1.The judgment and order of dismissal made by the Senior Resident Magistrate in Busia CMCC ELC Case No E01 of 2021 is set aside and substituted with an order allowing the reliefs in the plaint dated January 4, 2021
  2. 2.The costs of the appeal and of the case in the court below (CMCC Case No E01 of 2021) are awarded to the Appellant

Authorities

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Legislation

  • Law of Contract Act, Cap 23 Laws of KenyaSection 3(3) and proviso; section 3(7)
  • Statute Law (Miscellaneous Amendments) (No 2) Act, 1990, No 21 of 1990Subsection (3) and (7)
  • Law of Succession Act, Cap 160Section 45(1)

Cases cited (7)

  • Selle & Another -Vs- Associated Motor Boat Co Ltd & others
    (1968) EA 123
  • Abdul Hammed Saif -Vs- Ali Mohamed Sholan
    (1955), 22 EACA 270
  • Samson Munikah T/a Munikah & Company Advocates V Wedube Estates Limited
    (2007) eKLR
  • Peter Mbiri Michuki V Samuel Mugo Michuki
    (2014) eKLR
  • Hirani V Kassam
    [1952] 19 EACA 131
  • JM Mwakio v Kenya Commercial Bank Limited
    Civ Apps 28 of 1982 and 69 of 1983
  • Purcell v FC Trigell Ltd
    [1970] 3 All ER 671
On appeal from
Senior Resident Magistrate's Court at Busia (CMCC ELC Case No E01 of 2021)
E01 of 2021
Jurisdiction invoked
First appeal from the Senior Resident Magistrate's Court to the Environment and Land Court

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, "Odunga (Suing as the administratrix of the Estate of Joshua Otieno alias Josiah Odunga Omondi) v Barasa & 9 others (Environment and Land Appeal E001 of 2021) [2022] KEELC 3801 (KLR)", Case Analysis (2022). Busia Chief Magistrate's Court Environment and Land Case No E01 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3801/eng@2022-06-29

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