Makokha v Shikhomoli (Environment and Land Appeal E051 of 2022) [2024] KEELC 5955 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the purchase price was paid
- 2.Whether the Respondent established trust
- 3.Whether the reliefs granted were available
Key legal issues
#Whether the purchase price of KShs 190,000 was paid at execution of the Sale Agreement
The Court affirmed the trial finding that the Respondent fully paid the purchase price.
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.
Whether the Respondent established a trust (constructive trust and proprietary estoppel) ousting the Land Control Act
The Court held the Respondent established trust entitling her to the reliefs granted.
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.
Whether the reliefs granted by the Subordinate Court were available
The Court held the Respondent was entitled to the reliefs she obtained.
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.
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.The appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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.
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.
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.
The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions.
I have no doubt in my mind that the Respondent established trust and was entitled to the reliefs that she obtained.
Whether trust exists is a question of fact which must be proven through evidence.
Issues in the judgment
#The judgment elsewhere records the parcel as measuring 0.003 hectares (pleaded) while the search certificate is recorded as showing 0.03 hectares.
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.