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ELCPartially AllowedELC 628 & 532 of 2013 (Consolidated)· [2022] KEELC 15147 (KLR)

Mugwe & another (Administrator of the Estate of the Deceased-Jeremiah Mugwe Njoroge) v Kamau & 2 others

Environment and Land Court
24 November 2022
2,877 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two consolidated suits, ELC 628 of 2013 (a plaint seeking eviction from LR Limuru/Bibirioni/4232) and ELC 523 of 2013 (an originating summons by Loise Mugure Gichuhi seeking a declaration that a 100x100 feet portion of LR Limuru/Bibirioni/1572 belongs to her under a sale agreement dated December 23, 2004, plus an order for sub-division and registration), were determined together. The plaintiff, administrator of the estate of Jeremiah Mugwe Njoroge (registered proprietor of the suit property, a sub-plot curved out of parcel 1572), alleged trespass by the defendant. The defendant claimed she and her then husband David purchased the 100x100 feet portion being John Kamau Mugwe's anticipated share of inheritance, paid a deposit of Kshs 280,000, and took possession in 2004. The plaintiff's evidence was that the agreement was mutually revoked on August 31, 2012 for want of completion and title, and the deposit refunded by banker's cheque. The court held that the sale agreement failed for want of consideration, having been predicated on payment of the balance and transfer of title, neither of which occurred; that it was formally revoked; and that the defendant was only a witness to the agreement, with no trust, agency or collateral term including her. Applying the privity of contract doctrine as stated in Aineah Liluyani Njirah v Aga Khan Health Services, the court held she could not enforce the revoked agreement. The originating summons in ELC 523 of 2013 was dismissed with costs, while the plaint in ELC 628 of 2013 was allowed: an order of eviction of the defendant and those claiming under her from LR Limuru/Bibirioni/4232 was issued, with costs to the defendant.

Key legal issues

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01

Privity of contract - whether a non-party to a sale agreement can enforce it

Holding

The defendant, being only a witness to the sale agreement, could not rely on it to claim the suit property

Reasoning

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.

p. 5
02

Failure of the sale agreement for want of consideration and revocation

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • Under the doctrine of privity of contract, only parties to a contract may enforce its terms or be bound by them

Court orders

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  1. 1.Originating Summons in ELC 523 of 2013 dismissed with costs
  2. 2.Plaint in ELC No 628 of 2013 allowed
  3. 3.Order of eviction of the defendant, Loise Mugure Gichuhi, and anyone claiming under her, from LR No Limuru/Bibirioni/4232 issued
  4. 4.Costs of ELC 628 of 2013 to be paid by the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 34 rule 8
  • Trespass Actsection 3
  • Land Registration Actsection 24
  • Land Registration Actsection 25
  • Contract Actsection 3(3)

Cases cited (2)

  • Ochako Obinchu vs Zachary Oyoti Nyamongo
    [2018] eKLR

    Definition of trespass as unjustifiable intrusion upon land in possession of another

  • Aineah Liluyani Njirah vs Aga Khan Health Services
    [2013] eKLR

    Privity of contract - only parties to a contract can enforce its terms

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

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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, "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.