Mugwe & another (Administrator of the Estate of the Deceased-Jeremiah Mugwe Njoroge) v Kamau & 2 others
The bottom line
#A Kenyan court ruled that a woman who only witnessed a land sale agreement could not claim the property, and was ordered evicted.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract - whether a non-party to a sale agreement can enforce it
The defendant, being only a witness to the sale agreement, could not rely on it to claim the suit property
The court applied the common law doctrine of privity of contract as affirmed by the Court of Appeal in Aineah Liluyani Njirah v Aga Khan Health Services. The sale agreement was signed by the vendor and the vendor's wife, with the defendant only as witness. There was no clause creating a trust, agency, collateral contract or implied term including her. She therefore acquired no enforceable rights under the revoked agreement.
Failure of the sale agreement for want of consideration and revocation
The agreement failed for want of consideration since completion was predicated on payment of the balance and transfer of title, neither of which occurred; it was also formally revoked and the deposit refunded
The agreement's completion depended on payment of the balance of the purchase price and transfer of the title. There was no evidence of either. The agreement was revoked in writing on August 31, 2012 and the Kshs 280,000 deposit refunded by banker's cheque. The vendor also lacked title, having not been issued with one by his father.
Legal principles established
#- Under the doctrine of privity of contract, only parties to a contract may enforce its terms or be bound by them
Court orders
#- 1.Originating Summons in ELC 523 of 2013 dismissed with costs
- 2.Plaint in ELC No 628 of 2013 allowed
- 3.Order of eviction of the defendant, Loise Mugure Gichuhi, and anyone claiming under her, from LR No Limuru/Bibirioni/4232 issued
- 4.Costs of ELC 628 of 2013 to be paid by the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land disputes); the judgment does not expressly cite the provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugwe & another (Administrator of the Estate of the Deceased-Jeremiah Mugwe Njoroge) v Kamau & 2 others", Case Analysis (2022). ELC 628 & 532 of 2013 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15147/eng@2022-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.