Nungi v Mwaura (Being Sued in her Capacity as the Administrator of the Estate of Mwaura Njuguna) (Environment and Land Appeal E016 of 2022) [2024] KEELC 3822 (KLR)

The agreement priced the land at Kshs 55,000/- per acre; a cash receipt of that exact sum dated 21/2/1990 was in Leonard's custody, while all other payments were by cheques traceable to Njuguna, supporting the inference the cash came from Leonard. Leonard was a witness to the agreement because the brothers-in-law trusted each other and saw no need for a written agreement. Long, undisturbed occupation and the deceased's commenced subdivision corroborated the purchase.

Applying the equitable doctrines in Willy Kimutai Kitilit and the constitutional elevation of equity under Article 10(2)(b), the court held that although the agreement was oral and thus deficient under section 3(3) of the Law of Contract Act, equity enforces it where partly performed, to prevent unjust enrichment. Njuguna held one acre in trust for the Appellant, and the Respondent took subject to that encumbrance upon devolution.

Relying on Reliable Electrical Engineers Ltd v Mantrac Kenya Ltd, specific performance rests on a valid enforceable contract. Having found a constructive trust arising from an enforceable oral agreement, and no evidence of repayment of the Appellant's money, ordering transfer of one acre balanced the scales of justice and prevented the Respondent from unjustly retaining the land.

The court emphasized that pleadings are the bedrock of litigation and a court may not pronounce itself on unpleaded matters. Adverse possession was raised only in submissions on appeal, so the court declined to determine it despite the lengthy occupation evidence.