Boen ((Suing As A Personal And Legal Representative Of The Estate Of The Late Jacob Koboen Rono, Ad Litem)) v Kiplimo (Environment and Land Appeal E005 of 2022) [2024] KEELC 1623 (KLR)

The Appellant alleged a lease but produced no written lease agreement and denied any written agreement, failing to discharge the evidential burden under Section 107 of the Evidence Act. The Respondent produced four agreements for sale and a letter requesting the Appellant to attend the Land Control Board, thereby discharging his evidential burden. The trial court's finding of a sale, though unreasoned, was correct on re-evaluation.

Pre-2010 Constitution authorities favoured unenforceability for want of Land Control Board consent, but post-2010 decisions, including Macharia Mwangi Maina and Willy Kimutai Kitilit, approved by the Supreme Court in Amind Sha v Mombasa Bricks and Tiles, hold that constructive trust and proprietary estoppel apply to land subject to the Land Control Act. The Respondent paid the purchase price and took possession by planting tea, creating a constructive trust.

The Appellant pleaded that the Respondent's claim was time barred under Section 4(1) of the Limitation of Actions Act. The trial court did not consider the point, but on the first appeal the court addressed it. Having found a constructive trust, the counterclaim was excepted under Section 20(1), so specific performance remained available and the prayer for subdivision and transfer could be granted.

The Appellant complained that the learned magistrate failed to give reasons for allowing the counterclaim. The court agreed that the trial court neither addressed the Land Control Act provisions nor gave reasons for finding a sale, but having independently re-evaluated the evidence it reached the same conclusion, so the appeal still failed.