Githinji & another v Ndui (Environment and Land Appeal 21B of 2023) [2025] KEELC 1191 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that oral land sale agreements made before June 2003 remain enforceable, allowing buyers to demand full transfer.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the oral agreement for sale of the whole parcel
The oral agreement, made in 1989 before the 2003 amendment, was not caught by Section 3(3) of the Law of Contract Act and was enforceable.
Section 3(7) of the Law of Contract Act expressly excludes the application of Section 3(3) to agreements made before its commencement on 1st June 2003. The trial magistrate erred in holding the 1989 oral agreement void for non-compliance with Section 3(3). Reliance placed on Peter Mbiri Michuki and Anderson Omondi Owandho confirming the temporal limitation.
Whether the Kshs. 63,000/- paid was for a portion or the whole parcel
On the evidence, the Appellants purchased the whole plot and paid the full purchase price as agreed.
Both parties affirmed an oral agreement for sale of the whole plot; the only divergence was price. The court found it unreasonable that the second half would cost four times the first, and the Respondent's acknowledgments of payment and his own application for transfer of the whole plot confirmed full payment.
Whether the trial magistrate erred in applying the law to the facts
Yes; the magistrate erred in his evaluation of the evidence and the applicable law, reaching a wrong decision warranting interference on appeal.
The magistrate wrongly applied the post-2003 Section 3(3) to a pre-2003 oral contract, and misappreciated the evidence on the scope of the sale and payment. Re-evaluating the evidence under Selle v Associated Motor Boat Co, the ELC concluded the decision could not stand.
Legal principles established
#- Section 3(3) of the Law of Contract Act, which came into effect on 1st June 2003, does not apply to oral contracts for the sale of land concluded before that date, by virtue of Section 3(7).
- On a first appeal the court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed with costs
- 2.Judgment delivered on 25th November 2014 set aside
- 3.Judgment substituted in favour of the Appellants as prayed in the Plaint dated 15th September 2010
- 4.Appellants awarded the costs of the Appeal
- On appeal from
- Principal Magistrate's Court, Kerugoya
- PMCC No. 301 of 2010
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the judgment of the Principal Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji & another v Ndui (Environment and Land Appeal 21B of 2023) [2025] KEELC 1191 (KLR)", Case Analysis (2025). Kerugoya ELC Appeal (from PMCC No. 301 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1191/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.