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ELCDismissedNot stated in the judgment provided· [2025] KEELC 797 (KLR)

Okwayo v Mbithi & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 797 (KLR)

Environment and Land Court
25 February 2025
AKA. Y. Koross
1,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an appeal to the Environment and Land Court at Machakos against a ruling by Hon. A.W. Francis (magistrate) delivered on 4/12/2022, which dismissed a preliminary objection dated 14/04/2022 raised by the appellant (defendant below) against a suit by the respondents (plaintiffs below). The preliminary objection contended the trial court lacked jurisdiction, that the suit was barred by Section 3(3) of the Law of Contract Act (contracts for disposition of an interest in land must be in writing, signed and attested), and that the suit should be struck out as a nullity, relying on Peter Mbiri Michuki and Daudi Ledama Morintat. The trial magistrate found the respondents' claim was founded on constructive trust, exempt from Section 3(3), and dismissed the objection with costs. On appeal, reduced to two grounds, Koross J framed three issues: the nature of the cause of action, whether Section 3(3) barred the claim, and the orders to grant. Examining the plaint, the court found the respondents pleaded several causes of action - purchase of Title no. Machakos Municipality Block 1/716, payments of Kshs. 1,000,000/- and Kshs. 825,000/-, fraud and unjust enrichment - including constructive trust, which Section 3(4) of the Law of Contract Act saves from Section 3(3). While noting the trial magistrate had erroneously cited Section 4(1) instead of Section 3(4), the court held he did not err substantively. The appeal was dismissed with costs to the respondents, and the trial court's ruling was upheld.

Key legal issues

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01

Nature of the respondents' cause of action

Holding

The plaint discloses several causes of action, including constructive trust and fraud, and a claim founded on constructive trust is exempt from the writing requirements of Section 3(3) of the Law of Contract Act

Reasoning

The court examined the plaint, which pleaded purchase of the suit property, payment of Kshs. 1,000,000/- plus Kshs. 825,000/- towards land rent and rates, fraud particulars and unjust enrichment, with reliefs including constructive trust. The court held the causes of action were several, and constructive trust claims are saved by Section 3(4) of the Law of Contract Act, rendering the preliminary objection misplaced.

p. 4
02

Whether the trial magistrate erred in dismissing the preliminary objection

Holding

The trial magistrate did not err; his only mistake was referencing Section 4(1) instead of Section 3(4) of the Law of Contract Act, an error that did not affect the outcome

Reasoning

The court concurred with the trial magistrate that the claim was on constructive trust and exempt from Section 3(3). The magistrate had erroneously cited Section 4(1) instead of the saving provision in Section 3(4), but the substantive conclusion was correct. Accordingly the appeal lacked merit and was dismissed with costs to the respondents.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyze the record and determine whether the conclusions reached by the trial magistrate stand, giving reasons either way
  • Section 3(3) of the Law of Contract Act does not affect the creation or operation of a resulting, implied or constructive trust

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The ruling of the learned trial court delivered on 4/12/2022 dismissing the preliminary objection dated 14/04/2022 is upheld
  3. 3.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Law of Contract ActSection 3(4)
  • Law of Contract ActSection 4(1) (cited in error by the trial magistrate)
  • Auctioneers ActCap. 526 (within the proviso to Section 3(3))

Cases cited (4)

  • Peter Mbiri Michuki vs. Samuel Mugo Michuki
    (2014) eKLR
  • Daudi Ledama Morintat vs. Mary Christine Karie
    (2017) eKLR
  • Abok James Odera t/a A. J Odera & Associates vs. John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] KECA 3 (KLR)
On appeal from
Magistrates' Court (Machakos)
not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (appeal from ruling dismissing a preliminary objection)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okwayo v Mbithi & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 797 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/797/eng@2025-02-25

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