Masika v Mwasame (Environment and Land Appeal E048 of 2024) [2025] KEELC 5706 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of absence of Land Control Board consent on the sale agreement
The transaction became void under section 6 of the Land Control Act, but equity (constructive trust/unjust enrichment) may still protect the compliant party per the Kitilit line of authority
The court reviewed the two schools of thought: one holding that equity cannot supplant statutory prohibitions (David Ole Tukai), the other invoking constructive trust and unjust enrichment in favour of the cooperative party (Kitilit). Because the Appellant took the deposit, retained the land, and refused the balance, his conduct amounted to unjust enrichment, so equity applies despite the void consent defect.
Whether specific performance was the appropriate remedy
No - the balance was unpaid and possession had not passed, and damages/refund were an adequate alternative remedy
Relying on Chitty on Contracts, Reliable Electrical Engineers v Mantrac and Flood v Pritchard, the court held that specific performance requires a valid enforceable contract and will not issue where material terms remain unfulfilled, possession has not passed, or an adequate alternative remedy exists. Here the consideration was incomplete and vacant possession had not been given, so refund with interest was the just remedy.
Duty of the first appellate court
A first appeal requires re-evaluation of the evidence and drawing of independent conclusions, while bearing in mind the trial court's advantage of seeing witnesses
Guided by Selle v Associated Motor Boat Co, Verani v Phoenix of East Africa, Peter v Sunday Post and Makube v Nyamuro, the court outlined the standard: re-evaluate the evidence and reach its own conclusions, but interfere with factual findings only where they were not based on evidence, proceeded on misapprehension of the evidence, or wrong principles.
Legal principles established
#- Transactions affecting agricultural land are void unless the relevant Land Control Board consents, and money paid under such a void transaction is recoverable as a debt under section 7 of the Land Control Act
- The lack of Land Control Board consent does not preclude a court from giving effect to equitable principles such as unjust enrichment in favour of the compliant party
- Specific performance is an equitable remedy of last resort and will not be granted where an adequate alternative remedy such as damages exists
Court orders
#- 1.The trial court's judgment entered on 08/10/2024 is set aside
- 2.Substituted with an order compelling the Appellant to refund the sum of Kshs. 480,000/= received as part payment, together with interest at court rates from the date of payment until full refund
- 3.The Respondent shall have costs of this appeal
- On appeal from
- Kimilili Principal Magistrate's Court (SPM-ELC)
- Kimilili SPM-ELC E028 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Magistrates' Court appeal to the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masika v Mwasame (Environment and Land Appeal E048 of 2024) [2025] KEELC 5706 (KLR)", Case Analysis (2025). Kimilili SPM-ELC E028 of 2023 (appeal therein, Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5706/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.