Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment

Makokha v Shikhomoli (Environment and Land Appeal E051 of 2022) [2024] KEELC 5955 (KLR)

Environment and Land Court
19 September 2024
2,819 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal to the Environment and Land Court at Kakamega against the judgment of the Chief Magistrate (Hon. L Kassan) of 28th October 2022 in a suit arising from a sale of land parcel Bunyala/Budonga/1594. The Respondent bought the suit property from the Appellant by agreement dated 18th April 2018 for KShs 190,000, alleged full payment and immediate possession, and sued for specific performance. The trial court conditionally allowed a refund of purchase price, value of improvements plus interest, or alternatively empowerment of the Executive Officer to execute transfer documents, with costs to the plaintiff. The Appellant appealed on eight grounds, chiefly that payment was not proved and that the court erred in granting relief notwithstanding want of Land Control Board consent under the Land Control Act. D. O. Ohungo J re-evaluated the evidence as required on a first appeal. He found payment proved by the testimony of the attesting witnesses and the Respondent's Sacco account withdrawals made the day before execution, reinforced by the Appellant's unexplained silence for over two and a half years during which the Respondent occupied and developed the land. Applying the Supreme Court's decision in Shah v Mombasa Bricks & Tiles, the Court held the equitable doctrines of constructive trust and proprietary estoppel apply to land sale transactions and that the Appellant could not rely on his own refusal to obtain Land Control Board consent to retain both the property and the purchase price. The appeal was dismissed with costs to the Respondent on 19th September 2024.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the purchase price was paid
  2. 2.Whether the Respondent established trust
  3. 3.Whether the reliefs granted were available

Key legal issues

#
01

Whether the purchase price of KShs 190,000 was paid at execution of the Sale Agreement

Holding

The Court affirmed the trial finding that the Respondent fully paid the purchase price.

Reasoning

PW2 and PW3, witnesses to the Agreement, testified payment was made; the Respondent's Sacco account showed withdrawals of KShs 100,000 and KShs 110,000 the day before execution. The Agreement set no future payment date. The Court found it implausible that the Appellant would allow possession and construction for over two years without complaint if unpaid.

p. 4
02

Whether the Respondent established a trust (constructive trust and proprietary estoppel) ousting the Land Control Act

Holding

The Court held the Respondent established trust entitling her to the reliefs granted.

Reasoning

Relying on the Supreme Court's decision in Shah v Mombasa Bricks & Tiles and other authorities, the Court held equitable doctrines apply to land sale transactions. The vendor's own refusal to obtain Land Control Board consent could not be used to void a transaction where the purchaser had paid and taken possession and developed the land.

p. 6
03

Whether the reliefs granted by the Subordinate Court were available

Holding

The Court held the Respondent was entitled to the reliefs she obtained.

Reasoning

Having found payment, possession, development with the Appellant's knowledge, and an established trust, the Court saw no error in the trial court's conditional reliefs (refund with interest or, in the alternative, empowerment of the Executive Officer to execute transfer documents) and the award of costs to the plaintiff.

p. 6

Legal principles established

#
  • On a first appeal the court is duty bound, unless the appeal is on a point of law, to re-evaluate the evidence on record before arriving at a determination.
  • The doctrines of constructive trust and proprietary estoppel apply to land sale transactions notwithstanding want of Land Control Board consent, and can defeat a registered title.
  • A vendor cannot rely on his own refusal to obtain Land Control Board consent to escape a land sale transaction where the purchaser paid the price and took possession.

Court orders

#
  1. 1.The appeal is dismissed with costs to the Respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Subordinate Court (Chief Magistrate's Court)
Jurisdiction invoked
First appellate jurisdiction over a subordinate court suit (first appeal on facts and law)

Relief refused

#

Setting aside the Subordinate Court's judgment and dismissing the Respondent's case with costs

The Court found the Respondent fully paid the purchase price, took possession and established trust; the appeal lacked merit.

p. 6

Costs

Appeal dismissed with costs to the Respondent.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find no merit in this appeal. Consequently, I dismiss it with costs to the Respondent.
p. 6Final orders - dismissal of appeal
The Appellant cannot keep both the purchase price and the suit property by relying on his own refusal to obtain consent of the Land Control Board.
p. 6Equitable bar on relying on own non-compliance with Land Control Act consent
The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions.
p. 5Constructive trust in land sale transactions (Supreme Court, as adopted)
I have no doubt in my mind that the Respondent established trust and was entitled to the reliefs that she obtained.
p. 6Trust established
Whether trust exists is a question of fact which must be proven through evidence.
p. 5Nature of trust as a question of fact

Issues in the judgment

#
minor

The judgment elsewhere records the parcel as measuring 0.003 hectares (pleaded) while the search certificate is recorded as showing 0.03 hectares.

minor

The plaint is described as 'undated' yet a filing date is given.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Makokha v Shikhomoli (Environment and Land Appeal E051 of 2022) [2024] KEELC 5955 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5955/eng@2024-09-19

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