Chogi & 2 others (Personal Representatives of the Estate of Simon Chogi Gatuma - Deceased) v Kiragu (Environment & Land Case 189 of 2017) [2024] KEELC 3999 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant breached the sale agreement dated 13/10/2009
No breach was attributable to the Defendant; it was the Plaintiff who frustrated completion by failing to take steps to secure the grant and book the Land Control Board meeting.
The agreement was not subject to time being of essence; timelines were tied to events. The Kshs 200,000/- instalment was payable after filing of the succession petition, which the court found the Defendant duly paid by banker's cheque. The obligation to petition for succession lay with the Plaintiff as widower, and the Kshs 50,000/- balance was payable at a Land Control Board meeting which the Plaintiff never arranged. The court found the Plaintiff had resolved not to honour the agreement.
Whether the agreement was validly rescinded
The agreement was never rescinded; there was no evidence of notice to complete served on the Defendant.
The court reviewed the evidence and found nothing to show the Plaintiffs rescinded or terminated the agreement by serving reasonable notice. It relied on Eldo City Ltd v Corn Products to hold that a party cannot simply pull out of a transaction once consensus ad idem is reached, as that would encourage mischievous vendors to engage serious purchasers in a wild goose chase.
Whether the agreement was illegal for intermeddling contrary to Section 45 of the Law of Succession Act and for want of Land Control Board consent
Equity regards as done what should have been done; despite the irregularities, equitable conversion entitled the Defendant to specific performance through a constructive trust.
The court, as a court of law and equity, applied the maxim that equity regards as done what should have been done, invoking equitable conversion. Following Willy Kimutai Kitilit v Michael Kibet and related authorities, it held that Article 10(2) elevates equity to a constitutional edict, and constructive trust and proprietary estoppel apply to contracts void for want of Land Control Board consent, particularly where the vendor put the purchaser in possession.
Whether the Defendant is entitled to specific performance despite the absence of a formally labelled counterclaim
Yes; the further amended defence contains a counterclaim even though the word 'counterclaim' is not used, and specific performance was granted as damages were inadequate.
The court perused the further amended defence and found a counterclaim embedded in it. Possession had been delivered in 2009, the original title, ballot and death certificate handed over, and the Defendant had on-sold to third parties who developed the land. Damages would be inadequate and the Plaintiffs' retention of Kshs 600,000/- plus the land would amount to unjust enrichment.
Legal principles established
#- A court cannot rewrite a contract between parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.
- Under Article 10(2) of the Constitution, equity is a national value, and the doctrines of constructive trust and proprietary estoppel apply to land sale contracts rendered void for lack of Land Control Board consent where the vendor has put the purchaser in possession.
- Equity imposes a constructive trust against a seller who unconscionably refuses to perform a concluded land sale.
Court orders
#- 1.The Plaintiffs are ordered to execute the necessary documents to transfer the suit land to the Defendant within 45 days from the date of this Judgment.
- 2.Upon execution of the transfer in his name the Defendant to pay the sum of Kshs. 50,000/- to the Plaintiffs within 15 days thereof.
- 3.In default the Deputy Registrar of this Court is mandated to execute all documents to effectuate the orders.
- 4.The Defendant shall have the costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as implied by the court's jurisdiction over land disputes; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stima Investment Co-operative Society v Njenga & 3 others (Sued as the Administrators and/or the Personal Representatives of the Estate of Wambui Njenga (Deceased)) (Environment & Land Case E020 of 2022) [2025] KEELC 1199 (KLR)[2025] KEELC 1199 (KLR)13 Mar 2025
- Stima Investment Co-operative Society v Njenga & 3 others (Sued as the Administrators and/or the Personal Representatives of the Estate of Wambui Njenga (Deceased)) (Environment & Land Case E020 of 2022) [2025] KEELC 1199 (KLR)[2025] KEELC 1199 (KLR)13 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Chogi & 2 others (Personal Representatives of the Estate of Simon Chogi Gatuma - Deceased) v Kiragu (Environment & Land Case 189 of 2017) [2024] KEELC 3999 (KLR)", Case Analysis (2024). ELC 189 of 2017 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3999/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.