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ELCDismissedNot stated in the judgment· [2026] KEELC 1860 (KLR)

Chepkonga & another v Koima and Kibii (Suing as legal representatives of the Estate of the Late Isaiah Kibii Baswony) & 2 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1860 (KLR)

Environment and Land Court
3 March 2026
6,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a land buyer who paid and took possession keeps the land, even without Land Control Board consent.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Busia against a magistrates' court judgment delivered on 16th January 2023, which declared that the estate of Isaiah Kibii Baswony/Boswony owned the land parcel Baringo/Sabatia/531 and its subdivisions Baringo/Sabatia-103/874 and -103/875 (the suit properties). The trial magistrate had found that the deceased purchased 3 acres from the 1st appellant under a sale agreement dated 17th February 2007, paid the purchase price, and took possession, thereby acquiring the land under a constructive trust despite the absence of a completed transfer and Land Control Board consent. The 1st appellant denied the sale, and the 2nd appellant and 2nd respondent claimed under subsequent transactions following a failed sale by the 1st appellant's son, Samuel, with the 2nd respondent contending he was a bona fide purchaser for value. On appeal, the parties filed written submissions. Re-evaluating the evidence under the settled principles governing first appellate courts, Waithaka J found that the 1st appellant did sell the 3 acres to the deceased, who took possession and developed the land first; that the son who purportedly sold to the 2nd respondent was merely a witness to the original sale agreement; and that the 1st appellant, being a constructive trustee, lacked capacity to transfer the land to anyone other than the beneficial owner. Applying Willy Kimutai Kitilit v Michael Kibet, the court held that equity, elevated by Article 10(2)(b) of the Constitution, supersedes want of Land Control Board consent. The appeal was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the 1st appellant sold the suit property to the 1st respondent despite his denial

Holding

On re-evaluation of the totality of the evidence, the court found the 1st appellant did sell 3 acres of the mother title to the 1st respondent and gave him possession

Reasoning

The court re-evaluated the sale agreement dated 17th February 2007, the oral testimony, and the conduct of the parties. The 1st respondent took possession and utilised the land without interference. The trial court, which observed the witnesses' demeanour, disbelieved the 1st appellant's denial, and the appellate court found no reason to depart from that conclusion. The son who purportedly sold to the 2nd respondent was merely a witness to the sale agreement.

p. 11
02

Whether the 1st appellant held the suit property in constructive trust for the 1st respondent and thus lacked capacity to transfer it to others

Holding

Yes; at the time the property was registered in the 1st appellant's name he was a constructive trustee for the 1st respondent, the beneficial owner, and lacked capacity to transfer it to anyone else

Reasoning

Applying Willy Kimutai Kitilit v Michael Kibet, the court found that although the sale agreement was not completed by transfer and no Land Control Board consent issued, the purchaser paid the price and took possession. Equity, elevated by Article 10(2)(b) of the Constitution, superseded want of LCB consent. The subsequent subdivisions and transfers to the 2nd appellant and 2nd respondent could not defeat the beneficial owner's interest.

p. 13
03

Whether the 2nd appellant and 2nd respondent were bona fide purchasers for value without notice

Holding

No; they could not be innocent purchasers because the 1st respondent was already in occupation and possession, and the 2nd respondent's vendor had no beneficial interest capable of sale

Reasoning

The trial court found the 2nd respondent's conduct was not that of an innocent purchaser since due diligence would have revealed the 1st respondent's occupation and prior structure. The parcels purportedly sold by Samuel to the 2nd respondent were different from the suit property, and portions of the suit property transferred to the 2nd respondent had already been sold to the 1st respondent, so no valid title could pass.

p. 3

Legal principles established

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  • Equitable doctrines of constructive trust and proprietary estoppel supersede the Land Control Act where a land transaction is void for lack of Land Control Board consent, equity having been elevated to a constitutional principle by Article 10(2)(b)
  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence, on misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the 1st respondent who opposed it

Authorities

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Legislation

  • Constitution of KenyaArticle 10(2)(b)
  • Land Control ActNot specified

Cases cited (16)

  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Benja Properties Limited vs. Syedna Mohammed Burhannudin Sahed & 4 Others
    [2015] eKLR
  • Pankajkumar Hemraj Shah & Another v Abbas Lali Ahmed & 5 Others
    [2019] eKLR
  • Dina Management Ltd vs County Government of Mombasa & 5 Others
    (Petition 8(E010) of 2021) (2023) KESC 30 (KLR)
  • Katende v. Haridar & Company Limited
    [2008] 2 E.A.173
  • Samuel Kamere v Lands Registrar, Kajiado
    Civil Appeal No. 28 of 2005 [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No.239 of 2009 [2013] eKLR
  • Weston Gitonga & 10 others vs. Peter Rugu Gikanga & another
    (2017) eKLR
  • Joseph N.K Arap Ng'ok v. Moijo Ole Keiwua & 4 others
    (2014) eKLR
  • Lawrence P. Mukiri vs. Attorney General & 4 others
    (2013) eKLR
  • Republic vs. Kisumu District Lands Officer & another
    Kisumu Misc. No.80 of 2008 (2010) eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    Civil Appeal No. 156 of 2023 (2019) eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
On appeal from
Magistrates' Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over an appeal from the trial magistrate's judgment in a land dispute (Environment and Land Court)

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, "Chepkonga & another v Koima and Kibii (Suing as legal representatives of the Estate of the Late Isaiah Kibii Baswony) & 2 others (Environment and Land Appeal E003 of 2023) [2026] KEELC 1860 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1860/eng@2026-03-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.