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ELCPartially AllowedEnvironment and Land Appeal 20 of 2020· [2023] KEELC 21759 (KLR)

Nga'nga & 4 others v M'Arimi

Environment and Land Court
22 November 2023
5,591 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court enforced a land sale because the seller never raised his defences in his court pleadings, and buyers in possession are protected.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru (CK Nzili, J) against the judgment of Hon. J. Irura, Principal Magistrate, in Nkubu PMCC No. 25 of 2017, delivered on 22 January 2020. The respondent had sued the 1st appellant for breach of a sale agreement dated 22 November 2012 for half an acre of L.R. No. Igoki/Kianjogu/277 for Kshs.310,000/=, of which Kshs.250,000/= was paid as deposit; the 2nd to 5th appellants joined as interested parties claiming family and customary trust interests. The appellants attacked the trial judgment on grounds including non-compliance with Sections 6 and 7 of the Land Control Act, customary and constructive trust, frustration, and unenforceability. The court framed ten issues and held that parties are bound by their pleadings: the 1st appellant never pleaded breach, frustration, undue influence, unenforceability or non-compliance with the Land Control Act, and the interested parties' trust stake was never specifically pleaded. Having put the respondent into possession and caused him to expend on the land, the 1st appellant was estopped from reneging. Following Toroitich Suter and Robert Mbui, children of a living title holder have no overriding interest in his land. The court found no frustration, no valid rescission (no reasonable written notice of default), and held specific performance was the only appropriate remedy, the respondent having deposited the Kshs.60,000/= balance before the trial court. The claim for Kshs.620,000/= as damages failed as unpleaded special damages. The appeal succeeded only in terms of prayer (iv) of the trial court's judgment, with costs awarded to the respondent for the appeal and the lower courts.

Key legal issues

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01

Whether the sale agreement was void for lack of land control board consent

Holding

The plea failed because it was never pleaded at trial; the 1st appellant was estopped from reneging after putting the respondent in possession

Reasoning

The court held parties are bound by pleadings and issues flow from them. The 1st appellant failed to plead breach, frustration, unenforceability or non-compliance with the Land Control Act. Having put the respondent into possession and caused him to expend on the land, the 1st appellant was estopped in law from reneging on the sale agreement by pleading unenforceability or impossibility.

p. 8
02

Whether the suit land was subject to customary or constructive trust in favour of the 2nd – 5th appellants

Holding

No; the trust claim was unpleaded and children of a living title holder have no overriding interest

Reasoning

The interested parties' stake was not defined in the defence and no specific averments advanced their claim. Reliance on Toroitich Suter and Robert Mbui shows only spousal interest is an overriding interest; a father may deal with his land subject to his wife's consent without sharing with children during his lifetime.

p. 8
03

Whether the contract was frustrated or unenforceable

Holding

No; frustration must be pleaded with particulars and arises from no fault of either party

Reasoning

Citing Billey Oluoch Orinda and Lucy Njeri Njoroge, the court held a party relying on a frustrating event must plead its particulars, and the doctrine applies only where circumstances arise from no fault of either party. Rescission requires reasonable written notice of default, which was never given.

p. 9
04

What remedies were available to the respondent

Holding

Specific performance; the deposit of Kshs.60,000/= was paid before the trial court and a constructive trust arose from possession

Reasoning

Since the sale agreement was not impeached for mistake, illegality or fraud, and the land remained available, the respondent's possession created a constructive or resultant trust. Damages were inadequate as the typical remedy in a land sale contract is specific performance.

p. 9

Legal principles established

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  • A court has no jurisdiction to decide on an issue that is not pleaded
  • A party who puts another into possession of land under a sale agreement is estopped from denying the agreement
  • Children and grandchildren of a living title holder have no overriding interest in the property of their father or grandfather
  • Submissions do not amount to evidence or pleadings

Court orders

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  1. 1.The appeal succeeds in terms of prayer number (iv) of the trial court's judgment
  2. 2.The respondent is entitled to costs for this appeal and in the lower courts

Authorities

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Legislation

  • Land Control ActSections 6, 7, 22
  • Land Registration ActSections 24(a), 25(1), 26
  • Constitution of KenyaArticle 40(6)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 2 Rules 4 & 10
  • Law of Contract Act
  • Land ActSection 38
  • Evidence ActSection 120

Cases cited (44)

  • Selle vs Associated Motor Boat Company Limited & others
    (1968) E.A 123

    Duty of a first appellate court to rehearse and review the record while mindful the trial court saw witnesses firsthand

  • Oluoch Eric Gogo vs Universal Corporation Ltd
    (2015) eKLR

    Appellate court must re-evaluate the lower court record from a fresh perspective and with an open mind

  • Macharia Mwangi Kagiri & 87 others vs Davidson Mwangi Kagiri
    (2014) eKLR

    Equity suffers no wrong without a remedy; possession created an overriding interest

  • Willy Kimutai Kitilit vs Michael Kibet
    (2018) eKLR

    Court of Appeal allowed contract performance despite absence of land control board consent

  • David Sironga Ole Tukai vs Francis Arap Muge & others
    (2014) eKLR

    Land control board consent held mandatory by a different bench

  • Njenga Chogerua vs Maria Wanjiru Kimani and two others
    (2005) eKLR

    Trust proven through evidence as a question of fact

  • Mathuita vs Mathuita
    (1982 – 1988) 1 KLR 42

    Trust proven as a question of fact

  • Isaac Kiebia M'Inanga vs Isaaya Theuri M'Lintari
    Supreme Court of Kenya Pet No. 10 of 2015

    Elements to found a trust

  • Onyango Omoke vs John Omoke
    Kisumu C.A No. 10 of (1981)

    Constructive trust

  • Hussey vs Palmer
    (1972) 3 ALLER 744

    Constructive trust

  • Davis Contractors Ltd vs Fareham CDC
    (1956) AC 696

    Doctrine of frustration

  • Gurdev Singh Birdi and another vs Abubakar Madhubuti
    C.A No. 165 of 1996

    Specific performance is a just and equitable discretionary remedy; claimant must have performed his terms

  • Amina Abdul Kadir Hawa vs Rabinder Nath Anand & another
    (2012) eKLR

    Specific performance can be refused for undue influence or severe hardship

  • Republic vs Rosemary Wairimu Munene vs Ihururu Dairy Farmers Cooperative Society Ltd
    J.R. Application No. 6 of 2014

    Costs

  • Thomas Nyaga Njuki vs Alexander Ireri Karimi
    (2020) eKLR

    Costs

  • Lucy Njeri Njoroge vs Kaiyahe Njoroge
    (2015) eKLR

    Frustration applies only where circumstances arise from no fault of either party

  • Katende vs Haridar & Co. Ltd
    (2008) 1 EA 173

    Bona fide purchaser for value without notice

  • James N. Kiarie vs George Kinuthia and another
    (2012) eKLR

    Ancestral land claim unsubstantiated where land registered under the Land Registration Act

  • Raila Odinga & others vs IEBC
    (2017) eKLR

    Parties are bound by their pleadings and issues flow from them

  • Francis Muruatetu vs Republic
    (2016) eKLR

    An interested party has an identifiable stake with no necessary rights to enforce or claim

  • Omweri vs Kiptugen
    (C.A No. 5 of 2018) (2022) KECA (KLR)

    Grounds of appeal must arise from issues sufficiently pleaded, canvassed or raised at trial

  • Kenya Hotel Ltd vs Oriental Commercial Bank Ltd
    (2018) eKLR

    Grounds of appeal must arise from pleaded issues

  • Openda vs Ahn Martin
    (1984) KLR

    Parties cannot change their case or facts into a different case at appellate stage

  • Sun Sand Dunes Ltd vs Raiya Construction Ltd
    (2018) eKLR

    Object of contract construction is to ascertain common intention objectively

  • Aida Nunes vs John Mbiyo Njonjo & Another
    (1962) 1 E.A 88

    Time not of essence in land sale until notice served on the defaulting party

  • Gregory Mburu vs Thika District Hospital
    (2018) eKLR

    Time starts to run when the defendant breaches the contract

  • National Bank Kenya vs Pipeplastic Samkolit (K) Ltd & another
    (2002) eKLR

    Courts do not rewrite contracts; bound by terms unless coercion, fraud or undue influence pleaded and proved

  • Steadman vs Steadman
    (1976) AC 540

    A party who stands by while the other incurs expense on the faith of an agreement cannot later assert unenforceability

  • Gimalu Estates Ltd & other vs 1 Finance Corporation & another
    (206) eKLR

    Examples of frustration of contracts

  • Charles Miriti vs Thananga Tea Growers Sacco Ltd
    (2014) eKLR

    Sudden lack of finances due to crop failure as frustration; frustration renders performance impossible

  • Toroitich Suter vs William Toroitich and 3 others
    (2017) eKLR

    Only spousal interest is an overriding interest; children of a living title holder have none

  • Reuben Shikambe Shisambo vs Antonina Shilwatso Materu
    (2017) eKLR

    Family interests in registered land

  • Robert Mbui vs Kennedy Mwanzia Musembi
    (2018) eKLR

    A father may deal with his land subject to his wife's consent; no law mandates sharing with children during his lifetime

  • Daniel Toroitich Moi vs Stephen Murithi
    (2014) eKLR

    Submissions do not amount to evidence or pleadings

  • Supermarine Handling Services Ltd vs Commissioner General KRA
    (2002) 2 KLR 758

    Matters that must be specifically pleaded

  • City Council of Nairobi vs Salo Properties Ltd & another
    (2009) eKLR

    Matters that must be specifically pleaded

  • Nairobi City Council vs Thubet Enterprises Ltd
    (1995 – 1998) 2 E.A 237

    A court has no jurisdiction to decide on an issue that is not pleaded

  • Billey Oluoch Orinda vs Ayub Muthee M'Igweta & others
    (2017) eKLR

    A party relying on a frustrating event must plead the particulars

  • Maritime National Fish vs Ocean Trawlers
    (1935) AC 524

    Doctrine of frustration

  • Mwangi vs Kiiru
    (1987) eKLR

    Any breach gives rise to a cause of action; rescission concerns only future performance

  • Kenya Tea Development Authority vs Sundowner Lodge Ltd
    (2018) eKLR

    Damages for breach of contract not recoverable unless specially pleaded and proved

  • Capital Fish (K) LTD vs KPLC
    (2016) eKLR

    Special damages must be specifically pleaded and proved

  • DK Njagi Marete vs Judicial Service Commission
    (2020) eKLR

    Special damages must be specifically pleaded and proved

  • Toshike Construction Co. Ltd vs Harambee Cooperation
    (2021) eKLR

    Special damages must be specifically pleaded and proved

On appeal from
Principal Magistrate's Court, Nkubu
Nkubu PMCC No. 25 of 2017
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act

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, "Nga'nga & 4 others v M'Arimi", Case Analysis (2023). Environment and Land Appeal 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21759/eng@2023-11-22

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