Njoroge v Inshwil Builders Engineering Limited; Githakwa & 38 others (Interested Parties) (Environment and Land Case E018 of 2023) [2026] KEELC 2233 (KLR)
The bottom line
#A Kenyan court ordered a land seller to transfer 39 acres to a buyer who had paid most of the price, even without land control consent.
What this practically means
#Executive summary
#Key legal issues
#Quantum of purchase price paid
The plaintiff paid Kshs. 50,700,000/=, not Kshs. 58,500,000/=
The plaintiff produced no bank slips or transfer records to prove the higher figure; her only evidence was a self-made schedule. She had given inconsistent figures at different times, including in a 2015 letter to the Deputy Commissioner and a newspaper report, while the defendant did not dispute receipt of Kshs. 50,700,000/=.
Whether payments outside the 121-day period waived the breach clause
Yes – the defendant accepted payments after the 121 days and cannot invoke the liquidated damages clause
The court found the defendant accepted Kshs. 17,900,000/= after the agreed period. By accepting part payment with knowledge of the breach and without objection, the defendant acquiesced and waived reliance on the breach clause, and is estopped under Section 120 of the Evidence Act from denying the effect of that conduct.
Whether the Land Control Act rendered the transaction voidable
No – constructive trust and proprietary estoppel avert the injustice of invoking Sections 6 and 7
Following Kitilit and Rural Development Services, the court held that where a vendor receives substantial purchase price and gives possession, equity as a constitutional value under Article 10(2)(b) prevents the vendor from enriching himself through the Land Control Act. It would be most unconscionable for the defendant to retain the money for over 12 years and refund only part.
Res judicata
The plea fails – the plaintiff was not a party to ELC No. 67 of 2018 and its subject matter differed
The plaintiff was neither sued nor joined by third party notice in the earlier case, and the issue there was whether the defendant lawfully acquired the original parcels from Mugumoini Farmers Co. Ltd, not whether the defendant should transfer the excised 50 acres. The earlier suit therefore could not ground res judicata.
Possession and limitation
The defendant put the plaintiff in possession; she remains in constructive possession and the claim is not statute barred
The sale agreement provided for possession on signing and described itself as supplemental; payments began months before the agreement; and the site visit confirmed extensive development and occupation by interested parties. Her vacation was through thuggery, not lawful process, and her claim is for completion, not recovery of land.
Legal principles established
#- Where a vendor accepts part payment of the purchase price outside the agreed completion period, it acquiesces and waives the right to rely on the breach/liquidated damages clause.
- Since the Constitution of Kenya 2010 elevated equity to a constitutional value, the equitable doctrines of constructive trust and proprietary estoppel apply to and supersede the Land Control Act where a land transaction is void or unenforceable for want of land control consent, where it would be unconscionable to enforce the statute.
- A claimant who was neither a party nor joined in an earlier suit over related land cannot be met with a plea of res judicata from that suit.
- A purchaser put in possession who develops the land, and who cannot be lawfully removed, is in constructive possession, and a claim for completion is not a claim for recovery of land caught by limitation.
Court orders
#- 1.An order of specific performance requiring the Defendant to give immediate vacant possession of 39 acres to be excised out of land parcel No. Kakuzi/Kirimiri Block 7/383, in the area where the plaintiff had put up the developments noted by the court
- 2.A decree directing the Defendant to transfer the said 39 acres out of the suit land to the Plaintiff, who will in turn transfer the same to the concerned interested parties
- 3.In the alternative to (a), the Defendant to refund the current market value of the 39 acres awarded
- 4.Costs of the suit to the Plaintiff and the interested parties
- 5.Interest on the refunds and costs to the Plaintiff and the interested parties
- 6.The Deputy Registrar of the Court authorized to execute any documents or instruments necessary for the subdivision and transfer of the 39 acres if the Defendant fails to execute them
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) – not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Inshwil Builders Engineering Limited; Githakwa & 38 others (Interested Parties) (Environment and Land Case E018 of 2023) [2026] KEELC 2233 (KLR)", Case Analysis (2026). Not stated in the judgment (ELC, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2233/eng@2026-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.