Charles Barchigei (Suing as Legal Personal Representative of Jonathan Kipkoross Chesagur) v William K. Koross (Sued as the Administrator of the Estate of Elijah C.A. Koross) & 2 others

The court applied Anarita Karimi Njeru as reaffirmed in Mumo Matemu and Communications Commission of Kenya. The Petitioner's grounds specifically cited Article 40 and alleged that the 1st Respondent secretly transferred the suit land to his exclusion despite monetary contributions, establishing the required link between party, provision and contravention.

The Court of Appeal had substantively determined that the Petitioner was not a party to Kitale HCCC No. 89 of 1997, and its functus officio ruling confirmed this. The other suits either concerned different issues, were decided in limine, or did not involve the Petitioner, so the conjunctive elements of Section 7 of the Civil Procedure Act were not met.

The court reasoned that for most of the dispute the Petitioner laboured under the impression he was a party through Hezekiah Komen. Only when the Court of Appeal held on 06/03/2015 that he was never a party did the cause of action crystallize, prompting the 2016 Petition. Prejudice, if any, was mutual since all original purchasers had died.

Relying on the definition of partnership in Section 2 of the Partnerships Act 2012 and the testimony of Retired Justice Tunoi, the court found the six persons joined in a common enterprise to acquire the land for profit. The parol evidence rule barred the 1st Respondent from varying the written agreement by oral evidence of a loan.

The refund clause required two conditions: failure to obtain the land and refund of Kshs. 23,000.00. The 1st Respondent secured the land in 1975, so the clause was unenforceable. The payment vouchers totalling Kshs. 18,940.00 lacked narratives, did not total the sum, and were contradicted by the retired judge's testimony that the refund was rejected and retained in the law firm's account.

Under Section 8(2) of the Land Control Act a consent decision is final and not question-able in court; appeals lie only to the land control appeals boards. The 1st Respondent never pursued those mechanisms. The consent conferred rights on the sleeping partners jointly with the 1st Respondent and, under Section 28(j) of the Land Registration Act, remained an overriding interest.

Although the agreement did not satisfy Section 3 of the Law of Contract Act, the proviso preserves resulting, implied and constructive trusts. Having used the Petitioner's money to secure the property while denying him the agreed pro rata share, the 1st Respondent would be unjustly enriched; equity therefore imposed a resulting trust in the Petitioner's favour.

The doctrine of lis pendens, preserved via Section 107(1) of the Land Registration Act and the Judicature Act, prohibited alienation pending Kitale HCCC No. 89 of 1997. The 1st Respondent registered instruments without disclosure, misled Lands Limited, and acted to disinherit the sleeping partners despite subsisting overriding interests under Section 28(b) of the Land Registration Act.

Title obtained by misrepresentation and fraud is not protected by Article 40(6). The 1st Respondent's deprivation of the Petitioner's right to acquire ownership breached Article 40(1). The 2nd and 3rd Respondents were not parties to the transactions, registered instruments in good faith, and were never notified of any complaint, so they were absolved.