Mitei v Baseland Property Consultants Ltd & 2 others (Environment & Land Case 56 of 2015) [2023] KEELC 148 (KLR)
The bottom line
#A Kenyan land buyer whose sale agreement broke formal legal rules could not keep the land, but the court ordered the sellers to refund her full purchase price with interest.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the sale agreement of March 10, 2011
The agreement was invalid and unenforceable for non-compliance with sections 3(3) and 3(6) of the Law of Contract Act
The agreement was signed by the plaintiff's brother-in-law without written authority, and executed for the 1st defendant company by one individual without affixing the common seal, contrary to section 3(6). Neither defendant was the registered proprietor and no power of attorney existed. The mandatory requirements of section 3(3) having been breached, the agreement could not support specific performance.
Whether the plaintiff is entitled to reimbursement of the purchase price and by whom
The 1st and 2nd defendants are jointly and severally liable to refund the Kshs 710,000 purchase price with interest
Although the agreement was unenforceable, the 1st defendant admittedly received the full purchase price and remitted part to the 2nd defendant. The directors' conduct was found deceitful, both lacking title. Equity will not allow them to retain the payment; substantive justice demanded refund with interest.
Whether the plaintiff qualified as a bona fide purchaser for value without notice
It is doubtful the plaintiff was a bona fide purchaser since her official search revealed the defendants were not the registered proprietors
Applying the Katende v Haridas criteria, the plaintiff knew from her search that the registered proprietors were Rael Jemutai Kibor and Michael Cheruiyot, yet proceeded to contract and pay the defendants who held no title. Her claim to specific performance was thus undermined.
The 1st defendant's counterclaim against the 2nd defendant
Dismissed; the 1st defendant tendered no evidence and the counterclaim was a red herring
Despite filing a counterclaim for refund of monies remitted to the 2nd defendant, the 1st defendant adduced no evidence in support. Having found both defendants deceitful participants in selling land without title, the court saw the counterclaim as a diversion.
Legal principles established
#- A contract for the disposition of an interest in land must comply with section 3(3) of the Law of Contract Act: it must be in writing, signed by all parties, with signatures attested by a witness
- A limited company must execute an agreement of sale by affixing its common seal or as provided in section 3(6) of the Law of Contract Act
- Equity will not allow defendants who received the purchase price while lacking title to retain it; they are liable to refund it (ubi jus ibi remedium)
Court orders
#- 1.The 1st and 2nd defendants to jointly and severally refund the plaintiff Kshs 710,000/= being the purchase price paid, with interest at court rates from the March 13, 2011, till payment in full
- 2.The plaintiff is awarded costs of the suit to be paid by the 1st and 2nd defendants jointly and severally
- 3.The 1st defendant's counterclaim against the 2nd defendant is dismissed with each party bearing its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2)(b) context; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Portsmouth Holdings Limited v Kenya Railways Corporation (Environment & Land Case 7 of 2021) [2025] KEELC 4909 (KLR)[2025] KEELC 4909 (KLR)25 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mitei v Baseland Property Consultants Ltd & 2 others (Environment & Land Case 56 of 2015) [2023] KEELC 148 (KLR)", Case Analysis (2023). ELC Case (Eldoret Municipality/Block 10/1991 suit), plaint dated February 25, 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/148/eng@2023-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.