Sang v Letting (Sued as legal representative of Josphat Letting (Deceased) & another (Environment and Land Case 14 of 2022) [2024] KEELC 482 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the transaction - lease or sale
The transaction between the Plaintiff and the 2nd Defendant was a sale, not a lease
The Plaintiff pleaded a 10-year lease but led no corroborating evidence of it; instead he testified about an unpleaded sale of trees. The 2nd Defendant called five witnesses, including relatives of the Plaintiff, who testified to the sale, and the payment accounts were mutually consistent. The Plaintiff's conduct - vacating, demolishing his houses, authorizing demolition, and handing over title deeds - was consistent with a sale and inconsistent with a lease.
Whether the oral sale offended Section 3(3) of the Law of Contract Act
Section 3(3) does not apply to a 2000 verbal sale agreement
The transaction was concluded in 2000, before Section 3(3) came into force in 2003; Section 3(7) exempts oral agreements made before commencement. The Court adopted the Court of Appeal's reasoning in Peter Mbiri Michuki v Samwel Mugo Michuki that Section 3(3) does not apply to oral contracts for sale concluded before it came into force, especially where coupled with part performance.
Whether the sale was a nullity for lack of Land Control Board consent
No - constructive trust and proprietary estoppel apply so lack of consent is not fatal
The pre-2010 authorities declaring such transactions nullities have been overtaken by Macharia Mwangi Maina and Willy Kimutai Kitilit, endorsed by the Supreme Court in Aruind Sha v Mombasa Bricks & Tiles. The Plaintiff gave vacant possession, demolished his houses and moved away, so proprietary estoppel was established and a constructive trust inferred to prevent unjust enrichment.
Whether the Plaintiff proved his case
No - the Plaintiff failed to discharge the burden of proof and his evidence was at variance with his pleadings
Under Section 107 of the Evidence Act the party asserting a fact bears the burden of proving it. The Plaintiff pleaded a lease but adduced no evidence of it; his evidence of a sale of trees was unpleaded and therefore, per IEBC v Stephen Mule, went to no issue. On balance of probabilities his suit failed and was dismissed.
Whether the Defendants proved the counterclaim
Yes - the 2nd Defendant proved a verbal sale, took possession in 2001, and resold to the late Josephat Letting who took possession in 2007
The Court found the Defendants proved the verbal/oral sale on a balance of probabilities, entitling them to the reliefs sought in the counterclaim. Because the 2nd Defendant admitted reselling to the late Letting, the declaration of ownership was coupled with an order that he transfer to the 1st Defendant as administrator of the estate, the ultimate beneficial owner.
Legal principles established
#- Section 3(3) of the Law of Contract Act came into force in 2003 and does not apply to oral land sale contracts concluded before its commencement, by virtue of Section 3(7)
- Post-2010 Constitution, the equitable doctrines of constructive trust and proprietary estoppel apply to oral land sale transactions, and lack of Land Control Board consent does not preclude giving effect to them
- Evidence at variance with the pleadings goes to no issue and must be disregarded
- Conduct consistent with a sale (vacating, demolishing houses, handing over title documents) supports a finding of sale over a claimed lease
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Declaration that the 2nd Defendant is a bonafide purchaser and/or owner of Nandi/chepkunyuk/80 and Nandi/chepkunyuk/81
- 3.The Plaintiff to execute all necessary documents to effect transfer of the suit parcels to the 2nd Defendant within 30 days
- 4.In default, the Deputy Registrar to execute the necessary documents to effect the transfer
- 5.Upon transfer to the 2nd Defendant, he shall within 7 days cause a transfer to be effected to the 1st Defendant as ultimate beneficial owner
- 6.The Defendants are jointly awarded the costs of the Plaintiff's suit and the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land transferred from E&L Eldoret to E&L Kapsabet)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sang v Letting (Sued as legal representative of Josphat Letting (Deceased) & another (Environment and Land Case 14 of 2022) [2024] KEELC 482 (KLR)", Case Analysis (2024). E&L 510 of 2013 (transferred from Eldoret to Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/482/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.