Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMachakos ELC No. 148 of 2018· [2024] KEELC 3980 (KLR)

Nthenge v Mwasaru & 7 others (Environment & Land Case 148 of 2018) [2024] KEELC 3980 (KLR)

Environment and Land Court
29 April 2024
6,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

#

A registered landowner who sold land, watched buyers occupy it for ten years, then claimed it back lost—the court ordered him to transfer the title.

What this practically means

#

Executive summary

#
By a plaint dated 13th February 2013, Jonah Kisese Nthenge, registered proprietor of Mavoko Town Block 3/2101 since 2004/2005, sued for possession, eviction of the defendants and members of Ushirika Boma Welfare Society, a permanent injunction, and general damages for trespass, alleging they invaded the land. The defendants denied trespass, asserting they purchased the land from Mbukoni Holdings Limited in 2003, were issued share certificates, beacon certificates and passbooks, and took possession; they counterclaimed for declarations that interest had passed to them, that proprietary estoppel and constructive trust arose, rectification of the register or specific performance. The plaintiff claimed his transaction with Mbukoni was an incomplete controlled transaction lacking Land Control Board consent. The court framed four issues, first expunging the plaintiff's submissions filed by a firm with no notice of change of advocates under Order 9 rule 5. On the merits, the court held that the plaintiff had sold the land to Mbukoni; having invoked the agreement he was bound to produce it and prove breach, which he failed to do. Following Court of Appeal authority, the court held that the Land Control Act was not intended to enable unjust enrichment and that where the parties intended a sale, a constructive trust arises. The plaintiff, having acquiesced for ten years while the defendants occupied and developed the land, was estopped. The plaintiff's claim was dismissed; the counterclaim was allowed with declarations that the defendants are entitled to the land and that the plaintiff holds title in trust for them, with an order compelling transfer within 30 days, failing which the Deputy Registrar to execute. Each party was to bear its own costs.

Key legal issues

#
01

Validity of pleadings filed by R. K. Mutua & Company Advocates

Holding

Only submissions were filed by that firm; without a notice of change of advocates they were filed by a stranger and were expunged.

Reasoning

The court noted pleadings and representation were by F. M. Mulwa & Company Advocates. Order 9 rule 5 of the Civil Procedure Rules requires notice of change of advocates. Absent such notice, the submissions were filed by a stranger to the proceedings and were expunged from the record.

p. 9
02

Whether the plaintiff sold the suit property to Mbukoni and failed to prove breach

Holding

The transaction with Mbukoni was a sale, not an intended sale; the plaintiff bore the burden of proving breach but failed to produce the agreement or its terms.

Reasoning

Under section 107 of the Evidence Act the burden lay on the plaintiff. He admitted selling to Mbukoni but alleged non-completion. Having invoked the agreement, he was obligated to produce it, show its terms and the extent of breach, which he failed to do, stating neither price, amounts paid, timelines nor his own compliance.

03

Applicability of equitable estoppel and constructive trust despite want of Land Control Board consent

Holding

Equitable estoppel applied; the plaintiff, having sold to Mbukoni and watched the defendants occupy and develop for 10 years, holds the title in trust for the defendants.

Reasoning

The court aligned with Court of Appeal authority that the Land Control Act was not intended to enable unjust enrichment, and that equity, elevated as a national value under Article 10 of the Constitution, prevents a vendor from alleging breach, withholding the agreement, and reasserting title after 10 years of acquiescence while purchasers developed the land.

Legal principles established

#
  • Where the intention of the parties is to sell land, a constructive trust is created notwithstanding lack of Land Control Board consent.
  • The Land Control Act cannot be used as an instrument of unjust enrichment.
  • A party who stands by while another acts to their detriment is estopped from changing position.

Court orders

#
  1. 1.A declaration is hereby made that the defendants are entitled to the parcel of land known as Mavoko Town Block 3/2101 under the doctrine of equitable estoppel.
  2. 2.A declaration is hereby made that the plaintiff holds the title for the parcel of land known as Mavoko Town Block 3/2101 in trust for the defendants.
  3. 3.An order compelling the plaintiff to execute all relevant transfer documents to transfer the suit property to the defendants within 30 days of delivery of the judgment, and in default the Deputy Registrar of the court to execute the transfer documents.
  4. 4.Each party shall bear its own costs.
  5. 5.The plaintiff's claim is dismissed.
  6. 6.The plaintiff's submissions filed by the firm of R. K. Mutua and Company Advocates are expunged from the court record.

Authorities

#

Legislation

  • Registered Land Actsection 30(g)
  • Land Registration Actsection 26
  • Evidence Actsection 107
  • Land Control Actsection 8
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 40(6)
  • Civil Procedure RulesOrder 9 rule 5

Cases cited (14)

  • Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maim
    [2019] eKLR
  • Cornelius Kato v Peter John Mwanthi
    [2022] eKLR
  • MacFoy v United Africa Company Limited
    [1961] 3 ALL ER 1169
  • Ngumbi Muasya v Monica Tulu Ndulu
    [2018] eKLR
  • Samuel Kamere v Land Registrar Kajiado
    [2015] eKLR
  • Koyumkei Multipurpose Cooperative Society Limited & 17 Others v Rael Chepngetich Koech
    [2019] eKLR
  • Macharia Mwangi Maina and 87 others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Katana Kalume v Municipal Council of Mombasa
    [2019] eKLR
  • Weston Gitonga and 10 others v Peter Rugu Gikanga & another
    [2017] eKLR
  • Katende v Haridar and Company Limited
    (2008) 2 EA 173
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Mohammed Salim t/a Choice Butchery v Nasserpuria Memon Jamat
    [2015] eKLR
  • William Kipsoi Ngetich v Kipkoech Arusei & another
    [2019] eKLR
  • Titus Muiruri Doge v Kenya Canners Limited
    [1988] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit by plaint with defence and counterclaim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nthenge v Mwasaru & 7 others (Environment & Land Case 148 of 2018) [2024] KEELC 3980 (KLR)", Case Analysis (2024). Machakos ELC No. 148 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3980/eng@2024-04-29

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