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ELCDismissedKerugoya MELC Appeal (from Kerugoya MELC Case No. E002 of 2024)· [2026] KEELC 2031 (KLR)

Nguru v Wainaina & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 2031 (KLR)

Environment and Land Court
15 April 2026
SKS. M. Kibunja
4,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that an oral land exchange agreement is legally unenforceable, and a registered buyer's title stands unless fraud is properly pleaded and proved.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kerugoya against the judgment of Hon. M.W. Mutuku, CM, delivered on 14th January 2025 in Kerugoya MELC Case No. E002 of 2024, which dismissed the Appellant's claim, dismissed the 1st Respondent's counterclaim, and allowed the 2nd Respondent's counterclaim. The Appellant claimed she and the 1st Respondent had orally agreed to exchange her parcel Kiine/Sagana/2274 for Kiine/Thingirichi/1491, and that the respondents fraudulently transferred both parcels to the 2nd Respondent. The 2nd Respondent maintained he purchased Kiine/Sagana/2274 for Kshs. 3,250,000 and acquired Kiine/Thingirichi/1491 for value, with the Appellant's occupation of the latter being temporary and permissive. The ELC, sitting as a first appellate court, re-evaluated the evidence. It held that the alleged oral exchange was unenforceable under Section 3(3) of the Law of Contract Act, the Appellant having conceded there was no written, signed and attested agreement, and that part performance was unavailable because her occupation was temporary, permissive and humanitarian. On title, the court applied Sections 24, 25 and 26 of the Land Registration Act, holding that the 2nd Respondent's registered title was indefeasible; no particulars of fraud were pleaded and none was proved, the Appellant's own daughters having executed the transfers and received consideration. The court found no misdirection by the trial magistrate and affirmed the judgment and decree, dismissing the appeal in its entirety and awarding the respondents the costs of the appeal.

Key legal issues

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01

Existence and enforceability of the alleged oral land exchange agreement

Holding

No enforceable exchange agreement existed; the oral exchange is barred by Section 3(3) of the Law of Contract Act and part performance does not apply

Reasoning

The Appellant conceded there was no written, signed or attested agreement, triggering the statutory bar in Section 3(3). Her occupation of Kiine/Thingirichi/1491 was shown, including by her own daughters' testimony, to be temporary, permissive and humanitarian, so it cannot constitute part performance unequivocally referable to an exchange agreement. The trial court's finding to that effect was correct.

p. 6
02

Lawfulness of the 2nd Respondent's acquisition and root of title

Holding

The 2nd Respondent's registered title is indefeasible; the Appellant did not plead or prove fraud or illegality to impeach it

Reasoning

Sections 24, 25 and 26 of the Land Registration Act confer absolute and indefeasible ownership subject only to fraud, misrepresentation, illegality, unprocedurality or corrupt scheme. No particulars of fraud were pleaded in the plaint; the registered proprietors (the Appellant's daughters) executed transfers, attended the Land Control Board and received consideration; no evidence of registry irregularity was adduced. The statutory burden was not discharged.

03

Whether the trial court erred in dismissing the Appellant's suit and allowing the 2nd Respondent's counterclaim

Holding

No error; dismissal of the suit and allowance of the 2nd Respondent's counterclaim were compelled by law

Reasoning

Once the exchange agreement was found unenforceable and the 2nd Respondent's title upheld, the declaratory and transfer reliefs had no juridical foundation. The Appellant pleaded no overriding interest, trust or proprietary estoppel, and relief cannot be granted on an unpleaded case. The counterclaim for eviction and injunction, grounded on proved purchase for value and registration, was properly allowed.

p. 9

Legal principles established

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  • An oral contract for the disposition of an interest in land, not in writing, signed by all parties and attested by a witness, is unenforceable under Section 3(3) of the Law of Contract Act
  • Part performance cannot be invoked where occupation is temporary, permissive and humanitarian rather than acts unequivocally referable to an agreement
  • A registered proprietor's title is indefeasible and can only be challenged on fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme, with the burden on the challenger
  • Fraud must be distinctly pleaded with particulars and strictly proved; a general averment of fraudulency does not suffice
  • A court cannot grant relief on the basis of a case not pleaded; parties are bound by their pleadings

Court orders

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  1. 1.The appeal is without merit and is dismissed in its entirety
  2. 2.The judgment of Hon. M.W. Mutuku, CM, delivered on 14th January 2025 in Kerugoya MELC Case No. E002 of 2024, and the decree arising therefrom, is confirmed
  3. 3.The appellant to meet the respondent's costs in this appeal

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Registration of Land Act No. 3 of 2012Section 24(a)
  • Registration of Land Act No. 3 of 2012Section 25(1)
  • Registration of Land Act No. 3 of 2012Section 26(1)
  • Civil Procedure ActSection 27
  • Auctioneers Act(Cap. 526)

Cases cited (3)

  • Selle & Another versus Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Wanjiru Kamau versus Kamau Kania & Another
    (2014) eKLR
  • Peter Mbiri Michuki versus Samuel Mugo Michuki
    (2014) eKLR
On appeal from
Chief Magistrate's Court, Kerugoya (Magistrates' Court - Environment and Land)
Kerugoya MELC Case No. E002 of 2024
Jurisdiction invoked
First appeal to the Environment and Land Court from the magistrates' court (Environment and Land jurisdiction)

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, "Nguru v Wainaina & another (Environment and Land Appeal E005 of 2025) [2026] KEELC 2031 (KLR)", Case Analysis (2026). Kerugoya MELC Appeal (from Kerugoya MELC Case No. E002 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2031/eng@2026-04-15

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