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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st appellant sold the suit property to the 1st respondent despite his denial
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
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.
Whether the 1st appellant held the suit property in constructive trust for the 1st respondent and thus lacked capacity to transfer it to others
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
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 Equity, elevated by Article 10(2)(b) of the Constitution, superseded want of LCB consent.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.
Whether the 2nd appellant and 2nd respondent were bona fide purchasers for value without notice
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st respondent who opposed it
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.