Kiplagat v Mutai & 2 others (Environment and Land Appeal E015 of 2024) [2025] KEELC 6837 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the deceased father bought one acre of the suit property from the seller
Yes - despite no formal sale agreement being produced, the evidence including PW2's cross-examination testimony, letters dated 19th April 2021 and 12th March 2021, and a refund cheque established a sale of land transaction with the deceased.
PW2 admitted in cross-examination that he refunded Kshs. 260,000/- and decided to sell the land to someone else, confirming an earlier transaction. The letters and cheque corroborated an existing sale agreement. The court preferred the respondents' account that the transaction was a sale rather than the appellant's claim that the money was a loan secured by the land as collateral.
Whether lack of a written agreement vitiated the sale
No - the sale was concluded before the 2003 amendment introducing section 3(3) formalities, so the section cannot be invoked to defeat the claim.
Relying on Peter Mbiri Michuki v Samuel Mugo Michuki, the court held that section 3(3) of the Law of Contract Act came into effect in 2003 and does not apply to oral contracts for sale of land concluded before then; oral contracts backed by evidence, particularly coupled with part performance, suffice.
Whether the seller held the one acre in trust for the buyer's estate
Yes - a constructive trust arose upon settlement of the purchase price, constituting an overriding interest binding even a subsequent registered proprietor.
Adopting Kabui v Kabui and the Supreme Court's decision in Shah & others v Mombasa Bricks & Tiles, the court held that registration is subject to overriding interests including constructive trusts, which arise in land sale agreements and operate against unconscionable conduct.
Whether the seller committed fraud by selling the whole suit property to the appellant
Yes - the seller sold the suit property knowing he had already sold an interest in it to the deceased, without informing him.
The evidence showed the seller sold the suit property while aware of the deceased father's interest, and did not inform him of any intention to sell on account of alleged non-completion of payment. This constituted intentional deception amounting to fraud.
Legal principles established
#- Section 3(3) of the Law of Contract Act, which came into effect in 2003, does not apply to oral contracts for sale of land concluded before it came into force; oral contracts coupled with part performance suffice.
- Upon settlement of the purchase price, a seller may hold a constructive trust in favour of the buyer.
- Trusts, including constructive trusts, are overriding interests under section 28 of the Land Registration Act that limit the indefeasibility of a registered title.
- A first appellate court will not ordinarily interfere with findings of fact by the trial court unless based on no evidence, misapprehension of the evidence, or wrong principles.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- Chief Magistrate's Court at Iten
- Iten SPMCC No. E001 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (magistrates' courts appeal in land matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat v Mutai & 2 others (Environment and Land Appeal E015 of 2024) [2025] KEELC 6837 (KLR)", Case Analysis (2025). Environment and Land Appeal (Iten). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6837/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.