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ELCPartially AllowedEnvironment & Land Case E074 of 2021· [2022] KEELC 14775 (KLR)

Abok v National Social Security Fund (NSSF) & 2 others

Environment and Land Court
10 November 2022
EWE.K. Wabwoto
2,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a buyer's land ownership claim for lacking a written agreement, but ordered NSSF to refund his Kshs 263,000 payment.

What this practically means

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Executive summary

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The plaintiff sued NSSF, the Registrar of Lands and the Attorney General claiming ownership of Plot No B2/1 (Tassia LR 97/1155/002/1), which he said he had purchased under a tenant purchase arrangement through Kwa Ndege Self Help Group. He sought a declaration of ownership, a permanent injunction, cancellation of the title issued on February 6, 2006, eviction, registration in his name, mesne profits and costs. NSSF opposed, asserting that Kwa Ndege had grabbed the property, that the plaintiff was allocated the plot in 2003 at Kshs 586,590 but paid only Kshs 263,000, defaulted, failed to sign the tenant purchase agreement despite a default notice, and the plot was resold to a third party. The 2nd and 3rd Defendants did not participate. The court framed two issues: whether the plaintiff proved his case on a balance of probabilities, and the appropriate reliefs. Applying section 3(3) of the Law of Contract Act and section 107 of the Evidence Act, the court held the plaintiff failed to produce any tenant purchase agreement and had not proved ownership. However, since NSSF admitted the plaintiff paid Kshs 263,000, the court, relying on Odd Jobs v Mubia on unpleaded issues, ordered a refund of that sum, declining interest because the relief was not specifically pleaded. All other reliefs were declined and each party was ordered to bear its own costs. Judgment delivered virtually at Nairobi on November 10, 2022 by E.K. Wabwoto, J.

Key legal issues

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01

Whether the plaintiff proved ownership under a tenant purchase agreement

Holding

Claim failed; no tenant purchase agreement was produced, breaching section 3(3) of the Law of Contract Act

Reasoning

The plaintiff conceded he never signed or received a tenant purchase agreement and held no title. Section 3(3) of the Law of Contract Act requires a contract for disposition of an interest in land to be in writing, signed and attested. Without the agreement the claim of ownership could not be proved on a balance of probabilities.

p. 5
02

Whether refund of Kshs 263,000 could be granted though unpleaded

Holding

Refund granted as an unpleaded issue emerging at trial and admitted by the 1st Defendant

Reasoning

The 1st Defendant's witness admitted the plaintiff paid Kshs 263,000 towards the property. Although refund was not pleaded, the court may decide an unpleaded issue left to it at trial per Odd Jobs v Mubia. Interest was withheld because the relief was not specifically pleaded.

p. 5

Legal principles established

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  • A court may base a decision on an unpleaded issue where it appears from the course followed at the trial that the issue was left to the court for decision
  • No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties and attested

Court orders

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  1. 1.The Plaintiff is entitled to a refund of Kshs 263,000/-
  2. 2.The reliefs not expressly granted are declined
  3. 3.Each party to bear own costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107(1)(2)
  • Law of Contract ActSection 3(3)
  • Law of Contract ActSection 38
  • Land ActSection 38
  • Auctioneers ActCap 526

Cases cited (8)

  • Giella –Vs- Cassman Brown
    (1973) EA 358

    Conditions for grant of injunction orders

  • Leo Investment Ltd- Vs- Estuarine Estate Ltd
    (2017) eKLR

    Requirement of written signed contract for disposition of interest in land

  • Patrick Tarzan Matu & Another –Vrs- Nassim Shariff Abdulla & 2 others
    (2009)

    Section 3(3) Law of Contract Act requirement

  • Silverbird Kenya Limited –Vs- Junction Ltd & 30 others
    (2013) eKLR

    Section 3(3) Law of Contract Act requirement

  • Daudi Ledama Morintat –Vs- Mary Christine Karie & 2 others
    (2017) eKLR

    Section 3(3) Law of Contract Act requirement

  • Peter Kinyua Kimemia & 3 others –Vs- Embakasi North Constituency Development Fund Account Manager & 2 others
    (2021) eKLR

    Adverse orders against a non-party offend natural justice

  • Odd Jobs vs Mubia
    (1974) EA 476

    Court may decide an unpleaded issue left to it at trial

  • Transworld Safaris (K) Limited v Robin Makori Ratemo
    [2008] eKLR

    Unpleaded issues

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land

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, "Abok v National Social Security Fund (NSSF) & 2 others", Case Analysis (2022). Environment & Land Case E074 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14775/eng@2022-11-10

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