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ELCDismissedHoma Bay Environment and Land Case Appeal E010 of 2021 (Originating from Homa Bay CM ELC No. E003 of 2020)· [2024] KEELC 3455 (KLR)

Ogola & another v Aketch (Environment and Land Appeal E004 of 2021) [2024] KEELC 3455 (KLR)

Environment and Land Court of Kenya
9 April 2024
2,486 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Homa Bay upheld a 1995 land sale, ruling the buyer's claim survived limitation because a constructive trust protected his interest.

What this practically means

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Executive summary

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The respondent, as plaintiff in Homa Bay CM ELC No. E003 of 2020, claimed a 27m by 69m portion of Kanyada/Kanyango/Kalanya/1019 which he purchased from the deceased husband of the 1st appellant under a 1995 sale agreement, paying Kshs.14,000 in installments. No transfer occurred, and after the seller's death the 1st appellant obtained a grant and sold the portion to the 2nd appellant, who asserted she was an innocent purchaser. The trial court (Hon. T. Obutu, CM) on 23rd September 2021 found the plaintiff had proved his case, issued a permanent injunction, and awarded costs. The appellants appealed on eight grounds, principally that the 1st appellant was not party to the contract, that the suit was time-barred under sections 4(1)(a) and 7 of the Limitation of Actions Act, and that the trial magistrate ignored their evidence and submissions. The appeal was heard by written submissions. Ongondo J, exercising first appellate jurisdiction with caution per Peters v Sunday Post, held the sale agreement valid and enforceable through equitable estoppel and constructive trust (Willy Kimutai Kitilit v Michael Kibet), with no indication the purchase price was unpaid. The limitation objection failed because section 20(1)(b) of the Limitation of Actions Act applies to constructive trusts, equity having been elevated to a constitutional principle by Article 10(2)(b). Complaints about disregarded submissions failed since submissions are not evidence. The appeal was dismissed with costs to the respondent, and the trial court's judgment was affirmed.

Key legal issues

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01

Whether the respondent's suit was time-barred under sections 4(1)(a) and 7 of the Limitation of Actions Act

Holding

The claim was not barred; the respondent's interest was a constructive trust, attracting section 20(1)(b) of the Limitation of Actions Act

Reasoning

The court held that the respondent's interest in the suit property was a constructive trust arising from the valid sale agreement, so section 20(1)(b) of the Limitation of Actions Act applied rather than sections 4(1)(a) and 7. Article 10(2)(b) of the Constitution elevated equity to a constitutional principle, reinforcing the equitable protection of the purchaser.

p. 5
02

Whether the sale agreement (PExhibit 1) was valid, enforceable and breached

Holding

The agreement was valid and enforceable, supported by equitable estoppel and constructive trust; no evidence the purchase price was unpaid

Reasoning

From the evidence including PExhibit 1, the respondent purchased the disputed portion from the deceased seller. There was no indication the agreed purchase price was not paid in full. The 1st appellant conceded awareness of the agreement, and the asserted obligation to educate her children did not form part of the agreement's terms, so the sale bound the parties.

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03

Whether the trial court disregarded the appellants' submissions and authorities

Holding

No; the trial magistrate relied on the evidence on record, and submissions do not constitute evidence

Reasoning

The court found the learned trial magistrate was guided by the evidence on record and applied correct principles of law. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, submissions are merely parties' marketing language and cannot substitute for evidence, so their alleged disregard occasioned no miscarriage of justice.

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Legal principles established

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  • On a first appeal, the court may review the trial evidence to determine whether the original conclusion should stand, but exercises that jurisdiction with caution
  • Parties are bound by the terms of their contract unless there is coercion, fraud or undue influence
  • Submissions are not pleadings and cannot take the place of evidence

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the learned trial magistrate dated 23rd September 2021 is affirmed
On appeal from
Homa Bay Chief Magistrate's Court, Environment and Land Court
ELC No. E003 of 2020
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court under the ELC Act and Civil Procedure Act (first appellate jurisdiction to review trial evidence)

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, "Ogola & another v Aketch (Environment and Land Appeal E004 of 2021) [2024] KEELC 3455 (KLR)", Case Analysis (2024). Homa Bay Environment and Land Case Appeal E010 of 2021 (Originating from Homa Bay CM ELC No. E003 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3455/eng@2024-04-09

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