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ELCDismissedMCELC Appeal from Ruiru Chief Magistrates Court MCELC No. E182 of 2022 (Memorandum of Appeal dated 9/02/2024)· [2025] KEELC 2990 (KLR)

John Gicheru t/a Ruiru Green Estate v Gakuu (Environment and Land Appeal E019 of 2024) [2025] KEELC 2990 (KLR)

Environment and Land Court
1 April 2025
3,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that an oral land sale can be enforced through constructive trust despite the written contract requirement.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Thika against the judgment of Hon. C.K Kisiangani, Principal Magistrate, delivered on 21/12/2023 in Ruiru MCELC No. E182 of 2022. The Respondent, as Plaintiff, had sued for specific performance of a sale agreement over ten plots hived off LR No. 11262/1086 in Ruiru, a refund at market price, and damages. He paid Kesh 27,794,000 for ten plots but received leases for only nine; the Appellant retained the tenth plot, alleging it was held as lien for Kesh 3,500,000 in subdivision and transfer costs. The trial Magistrate granted specific performance with costs but declined damages. The Appellant raised fourteen grounds, principally that the oral contract was void under section 3(3) of the Law of Contract Act and that specific performance could not issue against him personally as a director of the company that dealt with the Respondent. Mogeni J, conducting a fresh evaluation of the evidence as required on a first appeal, held that pursuant to Article 10(2)(b) of the Constitution and the Court of Appeal decisions in Kitilit v Kibet and Macharia Mwangi Maina, the equitable doctrines of constructive trust and proprietary estoppel may supersede the statutory writing requirement. The Appellant produced no documentary proof of the alleged Kesh 3,500,000 claim, failed to explain why he received the full purchase price, and did not explain how he transferred nine plots if no contract existed. When he registered himself as proprietor of the tenth plot he was a constructive trustee, and retaining it would be unjust and inequitable. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether an oral contract for the sale of land, non-compliant with section 3(3) of the Law of Contract Act, can be enforced through constructive trust

Holding

Yes - the doctrine of constructive trust can supersede the writing requirement, and the trial Court correctly granted specific performance on equitable principles

Reasoning

Relying on Kitilit v Kibet and Macharia Mwangi Maina, the Court held that Article 10(2)(b) elevates equity to a constitutional principle. The Appellant received Kesh 27,794,000 for ten plots, transferred nine, and retained the tenth without proving his claim of Kesh 3,500,000. He was therefore a constructive trustee of the retained plot and retaining it would be unconscionable.

p. 7
02

Whether the Appellant proved his claim for Kesh 3,500,000 in subdivision and transfer costs justifying retention of the 10th plot

Holding

No - the claim was unsupported; the burden of proof lay on the Appellant under sections 106 and 107 of the Evidence Act

Reasoning

The Appellant produced no demand letter or documents supporting the alleged costs. He did not explain how he arrived at the figure, nor why he received the full purchase price if he did not intend to sell. He also failed to explain how he transferred nine plots while contending there was no contract.

p. 6
03

Whether the trial Court erred by 're-writing' the contract between the parties

Holding

No - implying terms to fill gaps is not re-writing a contract; parties are bound by their terms absent coercion, fraud or undue influence

Reasoning

Citing National Bank of Kenya v Pipleplastic Samkolit, the Court reiterated that courts cannot re-write contracts but may imply terms to fill obvious gaps. Describing gap-filling as 're-writing' is a misnomer. The Magistrate's findings were on equitable principles, not a re-writing of a non-existent written contract.

p. 4

Legal principles established

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  • A first appeal court must evaluate afresh the evidence on record and draw its own independent conclusions while bearing in mind it did not see or hear the witnesses
  • Equitable doctrines of constructive trust and proprietary estoppel may apply to and supersede statutory writing requirements for land contracts, per Article 10(2)(b) of the Constitution
  • The application of equitable doctrines is not automatic and depends on the facts of each case

Court orders

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

Authorities

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Legislation

  • Law of Contract Act, CAP 23, Laws of KenyaSection 3(3)
  • Land ActSection 38(2)
  • Land Control Actnull
  • Evidence ActSections 106 and 107
  • Constitution of KenyaArticle 10(2)(b)
  • English Law of Property (Miscellaneous Provisions) Act, 1989Section 2

Cases cited (5)

  • Selle vs. Associated Motor Boat Co. Ltd
    [1968] EA 123
  • National Bank of Kenya Ltd. v. Pipleplastic Samkolit (K) Ltd & Another
    [2002] EA 503
  • Willy Kimutai Kitilit vs. Michael Kibet
    [2018] eKLR
  • Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri
    [2014] eKLR
  • Yaxley v. Gotts
    [2000] Ch. 162
On appeal from
Ruiru Chief Magistrates Court
MCELC No. E182 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (statutory appellate jurisdiction of the Environment and Land 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, "John Gicheru t/a Ruiru Green Estate v Gakuu (Environment and Land Appeal E019 of 2024) [2025] KEELC 2990 (KLR)", Case Analysis (2025). MCELC Appeal from Ruiru Chief Magistrates Court MCELC No. E182 of 2022 (Memorandum of Appeal dated 9/02/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2990/eng@2025-04-01

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