Midumbi v Owiti & another (Sued as Administratixes of the Estate of the Late Leonadus Omolo Owiti Omolo)) (Environment and Land Appeal E048 of 2024) [2025] KEELC 5364 (KLR)

The court found the sale agreement valid and properly executed, distinguishing it from a lease. PW1, PW2 and PW3 gave consistent testimony confirming payment, possession and intention to enforce. Following Shah v Mombasa Bricks & Tiles and Willy Kimutai Kitilit, equity imposes a trust where the seller receives full consideration and puts the purchaser in possession but never transfers, even absent LCB consent. The trial court erred in giving insufficient weight to the doctrine.

The trial court held the cause of action arose in 1991 and expired 12 years later. The appellate court found, on the evidence of PW3 (working the land and building a house until 1996) and the 2002 complaint, that possession was continuous. Where a purchaser is in possession under a sale agreement, limitation runs only from dispossession or assertion of adverse title, which occurred with the 2022 succession proceedings.

The Respondents did not dispute the agreement's existence, tender no evidence of refund, nor challenge the consideration paid; their challenge rested only on lapse of time and lack of LCB consent. Following Kitilit and Aliaza v Saul, the court held that purchasers who pay and take possession but are denied transfer acquire equitable interests, and the estate holds the land in trust for the Appellant.