Kimani & another v Gichui & another (Environment & Land Case 1081 of 2016) [2023] KEELC 303 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Privity of contract - liability of the 2nd Defendant
The 2nd Defendant (Wembly Villas Ltd) was not a party to the sale agreements, which the 1st Defendant signed in his personal capacity; the suit against it is misconceived and was struck out.
The court examined the sale agreements and found the vendor identified as Paul K Gichuhi personally; the only reference to the 2nd Defendant was clause 18, which did not make it a contracting party. It was also admitted the 2nd Defendant was not the registered owner of the mother title. Applying the doctrine of privity, no claim can lie against a non-party.
Ownership of Plots 028 and 029
The declaration of ownership was refused because the mother title was never approved for subdivision, the plots are non-existent, and no certificate of title was ever issued.
DW1's uncontroverted evidence was that the subdivision scheme was never approved and LR 7418/21 remains intact. Under Sections 24 and 25 of the Land Registration Act, 2012, title accrues upon registration; absent existence of the plots and issuance of title, no declaration of bona fide ownership could be made.
Specific performance
Refused; the relief was never pleaded and leave to amend to include it had been dismissed, so it could not be introduced via submissions.
Following IEBC v Stephen Mutinda Mule, parties are bound by their pleadings and the court cannot adjudicate on matters not raised. An application for leave to amend to plead specific performance was dismissed on July 28, 2022; submissions cannot substitute for pleading.
Constructive trust
Not applicable; trust was neither pleaded nor proved by evidence, and submissions cannot take the place of evidence.
Citing Kazungu Fondo Shutu and Daniel Toroitich Arap Moi, the court held the existence of a trust is a question of evidence and the burden lies on the party asserting it. PW1 testified only about the sale agreements and payment, not about any trust, and the amended Plaint did not plead constructive trust.
Refund of purchase price and interest
Refund conceded and decreed, with interest at court rate (14% p.a.) from April 2008 to full refund, because the 1st Defendant continued to hold the monies despite the contracts becoming impossible to perform.
Payment of the full purchase price was common ground; the plots could never be transferred. The 1st Defendant's offer to refund in 2015 did not excuse his continued retention of the funds; he could have deposited the money in court under Order 27. Interest compensates for deprivation of the money, per Highway Furniture Mart.
Legal principles established
#- A contract cannot confer rights or impose obligations on a person who is not a party to it; the doctrine of privity precludes suit against a non-party.
- Title to land arises only upon issuance of a title document; no declaration of ownership can issue over non-existent, un-subdivided plots.
- Parties are bound by their pleadings; relief cannot be introduced for the first time in written submissions.
- Submissions are not evidence; a trust must be proved by pleadings and cogent evidence.
- Interest on a refund of purchase price compensates the plaintiff for deprivation of the money from the date of payment.
- A party refusing tendered refunds should have deposited the monies in court under Order 27 of the Civil Procedure Rules.
Court orders
#- 1.Refund of the purchase price: KES 420,000 to the 1st Plaintiff and KES 450,000 to the 2nd Plaintiff
- 2.Interest at court rates (14% p.a.) with effect from April 2008 to the date of full payment/refund
- 3.Plaintiffs' claim against the 2nd Defendant struck out
- 4.Costs of the suit awarded to the Plaintiffs and borne by the 1st Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to plots excised from land parcel LR No 7418/21, Ruiru
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & another v Gichui & another (Environment & Land Case 1081 of 2016) [2023] KEELC 303 (KLR)", Case Analysis (2023). Not stated in the judgment (Plaint dated September 6, 2016; amended Plaint dated November 15, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/303/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.