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ELCDismissedEnvironment & Land Case 14 of 2021 (formerly Migori ELC No. 636 of 2017)· [2023] KEELC 20206 (KLR)

Aloo - Suing as the legal representative of the Estate of Francis Okeyo Onyango (Deceased) v Taro

Environment and Land Court of Kenya
26 September 2023
3,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, legal representative of the estate of Francis Okeyo Onyango (deceased), sued the defendant seeking a declaration that a February 4, 2010 agreement for sale of 2 acres of land parcel Gem/Kajulu/616 was null and void ab initio on grounds of the deceased's alleged mental incapacity, together with eviction, general damages and mesne profits. The defendant, in a defence and counterclaim dated June 10, 2022, asserted the deceased was of sound mind, that he paid the full purchase price of Kshs 180,000, took possession and developed the land, and sought specific performance, a permanent injunction and damages. The court framed two issues: whether a binding and enforceable contract existed, and what orders would meet the ends of justice. It held the agreement complied with Section 3(3) of the Law of Contract Act, being written, signed and attested. The plaintiff produced no medical or expert evidence of mental incapacity, while the area chief (DW3) testified the deceased was of sound mind. On the failure to obtain Land Control Board consent, the court followed Aliaza vs Saul, finding the deceased seller's refusal to attend board meetings occasioned the failure, and applying Willy Kimutai Kitilit vs Michael Kibet held the sale enforceable through equitable estoppel and constructive trust. The plaintiff's suit was dismissed for failure of proof; the counterclaim succeeded in terms of prayers (a), (b), (c), (e) and (f), but general and exemplary damages were refused as general damages are not awardable for breach of contract. The plaintiff was ordered to execute transfer documents, failing which the Deputy Registrar would do so, and to bear the costs of the suit and counterclaim.

Key legal issues

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01

Capacity of the deceased to contract

Holding

The plaintiff failed to prove mental incapacity; no medical report or expert evidence was adduced, and DW3 testified the deceased was of sound mind

Reasoning

The plaintiff alleged the deceased suffered a nervous breakdown from a 1971 stroke and lacked contractual capacity. However, no medical report or expert evidence was produced to substantiate the claim of mental illness under the Mental Health Act. The area chief, who witnessed the agreement, testified the deceased was of sound mind, rode a bicycle and signed the agreement. The burden of proof under Sections 107-109 of the Evidence Act lay on the plaintiff and was not discharged.

p. 5
02

Effect of failure to obtain Land Control Board consent

Holding

Failure to obtain consent was occasioned by the deceased seller's refusal to attend Land Control Board meetings; the sale remains enforceable by equitable estoppel and constructive trust

Reasoning

Relying on Aliaza vs Saul, the court distinguished refusal of consent by the Board from a seller's failure to apply for consent. Here the deceased received the full purchase price and gave possession, but declined to attend Land Control Board meetings. Following Willy Kimutai Kitilit vs Michael Kibet, the lack of consent does not preclude enforcement through equitable estoppel and constructive trust, equity having been elevated to a constitutional principle under Article 10(2)(b).

p. 6
03

Whether the plaintiff proved his case

Holding

The plaintiff failed to prove his case on a balance of probabilities; the defendant proved his counterclaim

Reasoning

Applying Sections 107 to 109 of the Evidence Act and Kanyungu Njogu vs Daniel Kimani Maingi, the burden lay on the plaintiff throughout. The plaintiff did not prove the alleged mental incapacity, and the failure to obtain Land Control Board consent was attributable to the deceased seller. The defendant, by contrast, proved payment of the full purchase price, delivery of possession and developments on the land, establishing his counterclaim on a balance of probabilities.

p. 6
04

Damages for breach of contract

Holding

General damages are not awardable for breach of contract; the defendant's claim for general and exemplary damages was refused

Reasoning

Although the Environment and Land Court Act empowers the court to award damages, general damages are unavailable for breach of contractual obligations. A breached contract leads to compensation for the specific loss suffered, not general damages, per Securicor Courier (K) Ltd vs Benson David Onyango. The defendant therefore obtained specific performance and the constructive trust relief but not damages.

p. 6

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness under Section 3(3) of the Law of Contract Act
  • Where a seller receives the full purchase price and gives vacant possession but declines to apply for Land Control Board consent, consent has not been 'refused' within section 9(2) of the Land Control Act
  • Lack of Land Control Board consent does not preclude a court from giving effect to equitable principles, particularly the doctrine of constructive trust
  • General damages are not awardable for breach of contract

Court orders

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  1. 1.Plaintiff's suit dismissed
  2. 2.Defendant's counterclaim succeeds in terms of prayers (a), (b), (c), (e) and (f) of the counterclaim dated June 10, 2022
  3. 3.Declaration that the agreement for sale of the suit land was duly executed and is valid
  4. 4.Permanent injunction restraining the plaintiff from trespassing, encroaching, disposing, alienating, transferring, leasing or interfering with the 2-acre portion sold to the defendant
  5. 5.Declaration that the rescission notice by the plaintiff was null and void; order of specific performance compelling the plaintiff to complete the sale
  6. 6.Plaintiff ordered to execute all requisite documents to have the defendant registered as owner of the 2-acre portion of Gem/Kajulu/616; in default, the Deputy Registrar to execute such documents
  7. 7.Costs of the suit and counterclaim to the defendant

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Mental Health ActSection 2
  • Evidence ActSections 107 to 109
  • Environment and Land Court ActSection 13(7)(c)
  • Constitution of Kenya, 2010Article 10(2)(b); Article 159(2)(e)
  • Land Control RegulationsForm 1 in the Schedule (1967)
  • Auctioneers ActCap 526 (referenced in Section 3(3) proviso)

Cases cited (8)

  • African Cotton Industries Limited -vs- Rural Development Services Limited
    (2021) eKLR

    Capacity to contract; nullity of agreement entered by person lacking mental capacity

  • Wagiciengo vs Gerrard
    CA No 49 of 1981
  • Galaxy Paints Co Ltd vs Falcon Guards Ltd
    (1999) eKLR

    Issues for determination arise out of pleadings or as framed by the parties

  • Aliaza vs Saul
    (Civil Appeal 134 of 2017) (2022) KECA 583 (KLR)

    Distinction between refusal of Land Control Board consent and a seller's failure to apply for consent

  • William Kipsoi Sigei vs Kipkoech Arusei
    (2019) eKLR

    Sale enforceable by equitable estoppel and constructive trust despite lack of consent

  • Willy Kimutai Kitilit vs Michael Kibet
    (2018) eKLR

    Lack of Land Control Board consent does not preclude enforcement via constructive trust

  • Kanyungu Njogu vs Daniel Kimani Maingi
    (2000) eKLR

    Burden on plaintiff to prove case on a balance of probabilities

  • Securicor Courier (K) Ltd vs Benson David Onyango & another
    [2008] eKLR

    General damages not awardable for breach of contract

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act, 2015 (land dispute over Gem/Kajulu/616 in Homa Bay County)

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, "Aloo - Suing as the legal representative of the Estate of Francis Okeyo Onyango (Deceased) v Taro", Case Analysis (2023). Environment & Land Case 14 of 2021 (formerly Migori ELC No. 636 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20206/eng@2023-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.