Macere (Suing as the legal representative of the Estate of Peter Macere Kamundo (Deceased) v Kirinyaga County Government & another; Mwangi (Interested Party)
The bottom line
#The court upheld a 1976 oral land sale and dismissed the estate's appeal, confirming that pre-2003 oral land contracts in Kenya remain enforceable.
What this practically means
#Executive summary
#Key legal issues
#Validity of the oral sale agreement of 1976
The oral sale agreement between Peter Macere and Bernard Mwangi was valid; section 3(7) of the Law of Contract Act exempts pre-2003 oral contracts, and two uncontroverted witnesses corroborated the sale
The court applied section 3(7) of the Law of Contract Act, which preserves oral contracts made before the 2003 amendment introducing section 3(3). It relied on the Court of Appeal decision in Peter Mbiri Michuki v Samuel Mugo Michuki and found the interested party's two witnesses gave uncontroverted evidence corroborating the sale, with occupation since 1976 admitted by the appellant.
Lawfulness of the county council's nullification and reallocation
The 1st respondent acted lawfully; Council Minute WTPM&H 125/2009 proved the 2nd respondent's ownership, the parties were accorded a hearing, and the appellant proved no illegality in the nullification
The appellant alleged the minutes WTPM&H 59/96 were illegally nullified but adduced no proof. The evidence showed all parties were heard before nullification. The court also observed, sua sponte, that the council's decision could only be challenged by judicial review, not by an ordinary suit, so the trial court may have lacked jurisdiction had the issue been raised.
Legal principles established
#- Oral contracts for the sale of land concluded before the 2003 commencement of section 3(3) of the Law of Contract Act are not invalidated by the writing requirement, by virtue of section 3(7)
- A decision of a county council on a land dispute cannot properly be challenged by a fresh suit but only by judicial review proceedings
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Magistrate's Court at Kerugoya
- Kerugoya CMCC No. 323 of 2012
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from the Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macere (Suing as the legal representative of the Estate of Peter Macere Kamundo (Deceased) v Kirinyaga County Government & another; Mwangi (Interested Party)", Case Analysis (2023). Environment and Land Appeal 9 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21698/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.