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ELCDismissedEnvironment and Land Appeal (Iten)· [2025] KEELC 6837 (KLR)

Kiplagat v Mutai & 2 others (Environment and Land Appeal E015 of 2024) [2025] KEELC 6837 (KLR)

Environment and Land Court
24 September 2025
4,271 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff in Iten SPMCC No. E001 of 2022, a registered purchaser of land parcel Kabiemit/Flax Block 1 (Chepkorio)/142 from Edward Limo Chebor, sued for injunctions against the defendants, who counterclaimed that their deceased father, Andrew Kimutai Chepyator, had bought one acre of the suit property before the plaintiff's purchase. The trial magistrate (Hon. Karanja Virginia PM), by judgment of 16th September 2024, dismissed the plaintiff's suit, found fraud by the vendor, and allowed the counterclaim in substantial part, holding the respondents had locus (their grant ad litem sufficing) and had proved adverse possession of the one acre. On first appeal to the Environment and Land Court at Iten, L. N. Waithaka J re-evaluated the evidence and identified four issues: whether the deceased bought the one acre, whether lack of a written agreement vitiated the sale, whether a trust arose, and whether the vendor committed fraud. The court found ample evidence of a sale despite no formal written agreement, holding that section 3(3) of the Law of Contract Act (effective 2003) does not apply to pre-2003 oral land sale contracts. Relying on Kabui v Kabui and the Supreme Court's Shah v Mombasa Bricks & Tiles, the court held the vendor held a constructive trust, an overriding interest limiting indefeasibility of title. The vendor was found to have acted fraudulently in selling the whole property. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the deceased father bought one acre of the suit property from the seller

Holding

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.

Reasoning

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.

p. 7
02

Whether lack of a written agreement vitiated the sale

Holding

No - the sale was concluded before the 2003 amendment introducing section 3(3) formalities, so the section cannot be invoked to defeat the claim.

Reasoning

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.

p. 8
03

Whether the seller held the one acre in trust for the buyer's estate

Holding

Yes - a constructive trust arose upon settlement of the purchase price, constituting an overriding interest binding even a subsequent registered proprietor.

Reasoning

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.

p. 8
04

Whether the seller committed fraud by selling the whole suit property to the appellant

Holding

Yes - the seller sold the suit property knowing he had already sold an interest in it to the deceased, without informing him.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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

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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, "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.