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ELCAllowedKerugoya ELC Appeal (from PMCC No. 301 of 2010)· [2025] KEELC 1191 (KLR)

Githinji & another v Ndui (Environment and Land Appeal 21B of 2023) [2025] KEELC 1191 (KLR)

Environment and Land Court
13 March 2025
4,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. K.K. Cheruiyot (Ag. PM) in PMCC No. 301 of 2010, which dismissed the Appellants' claim for specific performance of an agreement over land parcel Kabare/Njiku/609 and ordered the Respondent to refund Kshs. 63,000/-. The Appellants bought half the plot under a written agreement dated 6th October 1989 for Kshs. 30,000/-, then orally agreed to buy the whole plot, paying a total of Kshs. 63,000/- and obtaining county council consents to subdivide and transfer. The trial magistrate held the oral agreement unenforceable for contravening Section 3(3) of the Law of Contract Act. J. M. Mutungi (ELC Judge), re-evaluating the evidence under the Selle principle, framed three issues: enforceability of the oral agreement, whether the payment covered the whole parcel, and whether the trial court erred in law. The court held that Section 3(7) of the Law of Contract Act exempts pre-2003 oral contracts from Section 3(3), which took effect on 1st June 2003, following Peter Mbiri Michuki and Anderson Omondi Owandho. It further found the evidence, including the 1994 council consent to transfer the whole parcel, proved the Appellants bought and fully paid for the entire plot. The court noted pleading deficiencies but held the Respondent held the title in trust pending transfer. Allowing the appeal, the court set aside the judgment of 25th November 2014 and substituted judgment for the Appellants as prayed in the plaint, with costs of the appeal to the Appellants.

Key legal issues

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01

Enforceability of the oral agreement for sale of the whole parcel

Holding

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.

Reasoning

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.

p. 7
02

Whether the Kshs. 63,000/- paid was for a portion or the whole parcel

Holding

On the evidence, the Appellants purchased the whole plot and paid the full purchase price as agreed.

Reasoning

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.

p. 10
03

Whether the trial magistrate erred in applying the law to the facts

Holding

Yes; the magistrate erred in his evaluation of the evidence and the applicable law, reaching a wrong decision warranting interference on appeal.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Appeal allowed with costs
  2. 2.Judgment delivered on 25th November 2014 set aside
  3. 3.Judgment substituted in favour of the Appellants as prayed in the Plaint dated 15th September 2010
  4. 4.Appellants awarded the costs of the Appeal

Authorities

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Legislation

  • Law of Contract Act, Cap 23 Laws of KenyaSection 3(3)
  • Law of Contract Act, Cap 23 Laws of KenyaSection 3(7)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7

Cases cited (3)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peter Mbiri Michuki v. Samuel Mugo Michuki
    [2014] eKLR
  • Anderson Omondi Owandho (suing as the legal rep. of the Estate of Thomas Owandho Rajwai (Deceased) v Augustinos Ondiek
    [2017] eKLR
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

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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, "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.