Njuguna v Nyakinyua Investment Co Ltd (Environment & Land Case 55 ‘B of 2022) [2025] KEELC 4689 (KLR)
The bottom line
#A Kenyan buyer without written contract or Land Control Board consent still won back his KShs 550,000, but lost the land itself for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Validity of the oral agreement for the sale of Plot No. 77
The agreement was oral and thus non-compliant with section 3(3) of the Law of Contract Act, but the court was inclined to find a constructive trust had it been pleaded
DW1 admitted the Defendant's practice was to sell plots without written agreements, purchasers paying the price into the advocates' account and receiving receipts. Although section 3(3) requires writing, the court noted that constructive trust can override this, citing the Macharia Mwangi Maina case, but the Plaintiff did not plead constructive trust, and identification of the suit property posed a difficulty anyway.
Identification of Plot No. 77 as Ruiru/Mugutha Block 1/6119
Not proved; the Plaintiff failed to discharge the burden of proof
The Plaintiff produced receipts referencing Plots 76 and 77, a registration receipt, a caution and a demand letter, but did not tender mutation forms or a subdivision plan connecting Plot 77 to the new parcel number. On sections 107 and 108 of the Evidence Act, he who asserts must prove, and without primary documents the nexus to Ruiru/Mugutha Block 1/6119 was not established.
Effect of lack of Land Control Board consent
The transaction over the agricultural land was void for want of consent, but the purchase price is recoverable under section 7 of the Land Control Act
Section 6 of the Land Control Act voids dealings in agricultural land within a land control area absent Board consent, and no exemption applied. Section 7 permits recovery of money paid under such a void transaction as a debt. Equitable principles and unjust enrichment reinforce the refund of Kshs. 550,000 for Plot 77.
Whether the Plaintiff paid for one plot or two
The court found the Plaintiff paid for two plots; DW1 was not a truthful witness
The receipts produced bore Plots Nos. 76 and 77, DW1 could not explain this nor identify which plot was paid for, and the Defendant had put the Plaintiff in possession of both plots pending transfer. The court therefore found payment of Kshs. 1,100,000 covered both plots despite the Defendant's assertion that the price was Kshs. 1,100,000 per plot.
Legal principles established
#- Despite the absence of a written contract under section 3(3) of the Law of Contract Act, a constructive trust may arise where a vendor has been paid the full purchase price, put the purchaser in possession, but refuses to transfer the land
- Money paid under a controlled transaction void for want of Land Control Board consent is recoverable as a debt under section 7 of the Land Control Act
- Retention of both the land and the purchase price would amount to unjust enrichment
Court orders
#- 1.The Defendant shall refund the Plaintiff the sum of Kshs. 550,000
- 2.The costs of this suit shall be borne by the Defendant
- 3.Interest on the refund at court rates from the date of filing suit until payment in full
- Jurisdiction invoked
- Original civil jurisdiction (Environment and Land Court) - no specific provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Nyakinyua Investment Co Ltd (Environment & Land Case 55 ‘B of 2022) [2025] KEELC 4689 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4689/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.