Githae v Kinga & 9 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff paid the full purchase price
The court inferred full payment from the vendor's conduct in pursuing subdivision and transfer after the letter of 11/5/1988 showing a balance of Kshs. 61,460.90.
Apart from the 11/5/1988 letter confirming a balance, there was no evidence the deceased ever demanded further sums. Had the price been unpaid by February 1989, the deceased would have demanded the balance or mentioned it in his letter of 16/2/1989 seeking steps to finalise subdivision and transfer. The steps he took towards excision and transfer supported the inference that full payment had been received.
Whether want of LCB consent rendered the transaction void and unenforceable
No; constructive trust and proprietary estoppel supersede the Land Control Act, and the lack of consent does not preclude enforcement of the constructive trust.
Relying on Willy Kimutai Kitilit, Macharia Mwangi Maina, William Kipsoi Sigei and George Chaguya Aliaza, the court held that Article 10(2)(b) elevates equity to a constitutional principle, and the equitable doctrines apply to land subject to the Land Control Act even where LCB consent was never granted, so the transaction remained enforceable.
Whether the Assent of 15/7/2008 was lawful
The Assent vesting the entire L.R No. 11306 in the 1st to 8th Defendants was illegal because the administrator concealed the Plaintiff's claim from the probate court.
The 1st Defendant knew of the Plaintiff's claim to 200 acres but included the whole parcel as free property of the estate in the succession cause without disclosing the sale. Under Section 76 of the Law of Succession Act a grant obtained by concealment of material facts may be revoked, and there is no time limit for such revocation. Only 64 acres should have been distributed.
Whether the 9th Defendant was a bona fide purchaser for value without notice
No; the Plaintiff's uncontroverted evidence that he warned the 10th Defendant to desist defeated the bona fide purchaser claim.
The Plaintiff testified he notified the 10th Defendant through Dr. Mugo to desist from purchasing; that evidence was not rebutted. A purchaser must take such information seriously and not rely solely on a registry search. The court was therefore not persuaded the 9th Defendant was an innocent purchaser without notice.
Whether the claim was time-barred under the Limitation of Actions Act
No; the right of action accrued on dispossession, which occurred when the Defendants staked claim and forcefully occupied the land in 2011.
Under Section 9(1) of the Limitation of Actions Act, where a person in possession of land is dispossessed, time runs from dispossession. The Plaintiff took possession in 1986, remained in occupation conducting his herbal medicine practice (interrupted only by tribal clashes), and was dispossessed when the Defendants forcefully occupied the land in 2011, so the suit filed in 2012 was timely.
Whether the probate proceedings barred this suit
The ELC has jurisdiction over title and occupation disputes; the Plaintiff was not a beneficiary and could not have objected under Section 68, and the probate court's distribution was made without hearing him.
Section 47 of the Law of Succession Act confers probate jurisdiction on the High Court, but disputes touching occupation of and title to land are the preserve of the ELC under Article 162 and Section 4 of the ELC Act. A purchaser is not among those entitled under Part V and Section 66, and Section 68 objections do not cover purchaser's interests, so the Plaintiff's claim could not be confined to the probate cause.
Legal principles established
#- Equitable doctrines of constructive trust and proprietary estoppel apply to land transactions subject to the Land Control Act notwithstanding lack of LCB consent.
- Possession of purchased land under a constructive trust is an overriding interest and limitation does not defeat it where the purchaser was dispossessed.
- A purchaser's interest in land sold by a deceased but untransferred at death is not part of the free property of the estate, and disputes over title to such land fall within the ELC's jurisdiction, not the probate court.
- A prospective purchaser cannot rely solely on an official search; notice of adverse claims from other sources defeats the bona fide purchaser defence.
Court orders
#- 1.A declaration that a constructive trust exists between the Plaintiff and the Estate of the late Kinga Wamwendia and the administrator and beneficiaries of that Estate in respect of 200 acres comprised in L.R No. 11306
- 2.A declaration that the Plaintiff is the legal owner of the 200 acres comprised in L.R No. 11306
- 3.Cancellation of the Assent registered on 15/7/2008 (entry number 8 on Grant No. IR 20579) and all subsequent entries so that the land is restored to the prior position
- 4.The 1st, 9th and 10th Defendants directed to surrender the original Grant No. I.R 20579 to the Deputy Registrar for onward transmission to the Chief Land Registrar for cancellation of entry number 8; L.R No. 11306 to be subdivided at the Plaintiff's expense to excise the 200 acres and a title processed in the Plaintiff's name, with the Deputy Registrar executing all deeds and instruments
- 5.A permanent injunction restraining the Defendants, their agents or servants from encumbering, trespassing, damaging, wasting, alienating, selling, transferring or otherwise dealing with the 200 acres belonging to the Plaintiff
- 6.The Plaintiff to take steps under Section 76 of the Law of Succession Act to have the grant issued to the 1st Defendant and its confirmation annulled to give effect to the orders
- 7.Costs of the suit awarded to the Plaintiff, to be borne by the Defendants
- 8.The 9th and 10th Defendants' counterclaim dismissed with costs to the Plaintiff
- Jurisdiction invoked
- Article 162 of the Constitution and Section 4 of the Environment and Land Court Act (disputes relating to use and occupation of, and title to land)
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.
Cite this brief
#Cite this brief
Caselaw, "Githae v Kinga & 9 others", Case Analysis (2023). Environment & Land Case 56 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19227/eng@2023-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.