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ELCPartially AllowedELC Appeal (Homa Bay) arising from CMCELC No. E001 of 2023· [2026] KEELC 3725 (KLR)

Jesus Fellowship Church International & another v Asman (Land Case Appeal E034 of 2024) [2026] KEELC 3725 (KLR)

Environment and Land Court
12 June 2026
JWJohn Walter Wanyonyi
4,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Homa Bay reversed a dismissed land suit, ordering transfer of the disputed plot to the buyer's estate despite a missing Land Control Board consent.

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 Homa Bay against the judgment of the Chief Magistrates Court (Hon. Jacinter Orwa) dated 31st July 2024 in CMCELC No. E001 of 2023, which dismissed the appellants' suit seeking registration of 252 by 130 feet of Title No. Kanyada/Kalanya/820 in favour of the 1st Plaintiff. The trial court had held that the 2nd Plaintiff lacked authority to sue for the church, and that the transaction was tainted with illegality because the Respondent's conduct amounted to intermeddling under section 45 of the Law of Succession Act, following Thrift Homes Limited v Kenya Investment Limited. On appeal, Wanyonyi J reconsidered the evidence afresh as required on a first appeal. He held that the record of appeal was properly on file, leave having been granted to extend time, and that the objection was an exercise in futility. On capacity, he found the Respondent's objection, raised for the first time at submissions without notice or pre-trial notification under Order 11, amounted to an ambush, inconsistent with Article 159(2)(d) of the Constitution; further, the 2nd Appellant sued properly as administrator of the deceased's estate and as sole trustee under the Trustees (Perpetual Succession) Act Cap 164. The court held the 2001 sale agreement valid and enforceable, section 3(3) of the Law of Contract Act not applying to pre-June 2003 agreements, and the trial court erred in finding illegality. Applying Kitilit v Kibet, the lack of Land Control Board consent did not defeat equity, and the Respondent held the land in constructive trust for the estate. Specific performance was granted. The appeal was allowed, the lower court judgment set aside, a permanent injunction issued, the Land Registrar directed to register the mutation in favour of the 2nd Appellant as administrator, and the Respondent ordered to surrender the original title within 30 days, with costs to the 2nd Appellant in both courts.

Key legal issues

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01

Validity of the record of appeal

Holding

The record of appeal was properly on file; the court had already granted leave to extend time and deemed it duly filed, so the objection was futile.

Reasoning

The court perused the proceedings of 27th November 2025 where Mr. Mwamu sought and obtained leave to extend time for filing the record of appeal, which was deemed duly filed and a hearing date granted. Raising the issue again at submissions was an exercise in futility, as the issue had been settled by that order.

p. 4
02

Capacity of the appellants to sue

Holding

The objection on capacity was improperly raised as an ambush; the 2nd Appellant properly sued as administrator of the deceased's estate and as trustee of the 1st Appellant.

Reasoning

The Respondent never raised capacity at the pre-trial conference under Order 11 of the Civil Procedure Rules nor during cross-examination, raising it only at submissions. The authorities relied on by the trial magistrate were decided on preliminary objections before trial and were distinguishable. Under the Trustees (Perpetual Succession) Act Cap 164 a sole trustee suffices, and the 2nd Appellant also sued as administrator of the deceased's estate.

p. 8
03

Validity and enforceability of the sale agreement

Holding

The sale agreement was valid and enforceable; section 3(3) of the Law of Contract Act did not apply to a 2001 agreement, and the trial court erred in finding the transaction tainted with illegality via section 45 of the Law of Succession Act.

Reasoning

The agreement was in writing, signed and attested, pre-dating section 3(3)'s commencement in June 2003. The Respondent admitted receiving the purchase price and that the church had been in occupation for 20 years. The trial magistrate's reliance on section 45 of the Law of Succession Act led to an erroneous finding of illegality; the Respondent entered the agreement willingly and without duress.

p. 7
04

Land Control Board consent and equitable relief

Holding

Any lack of Land Control Board consent does not defeat equitable principles; the Respondent holds the land in constructive trust for the estate having kept both the money and the land.

Reasoning

Relying on Willy Kimutai Kitilit v Michael Kibet, the court held that where a purchaser has paid and taken possession, equity will not allow the seller to use lack of consent as a technicality to retain both the money and the land. The Respondent was thus held to hold the suit portion in trust for the estate.

p. 8
05

Specific performance

Holding

Specific performance was merited because the deceased had completed her part of the contract and the Respondent was in breach.

Reasoning

Applying Reliable Electrical Engineers v Mantrac, Gharib Suleman Gharib and Thrift Homes, the court found a valid enforceable contract, full payment of Kshs 80,000, delivery of possession, and the deceased's readiness and willingness to complete. The Respondent breached the contract of 15th June 2001 by refusing to transfer despite obtaining letters of administration, and the balance of probabilities standard was met.

p. 8

Legal principles established

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  • A first appellate court must reconsider matters of fact and law afresh, re-evaluating the evidence while making allowance for not having seen or heard the witnesses.
  • Section 3(3) of the Law of Contract Act does not apply to agreements made before its commencement in June 2003.
  • Lack of Land Control Board consent does not preclude the court from giving effect to equitable principles, in particular the constructive trust, where the purchaser has performed his part.
  • An objection to capacity raised for the first time at submissions, without notice or pre-trial notification under Order 11, amounts to an ambush and should not be entertained.
  • A sole trustee is competent to institute proceedings on behalf of the beneficiary society under the Trustees (Perpetual Succession) Act.
  • Specific performance is granted on well-settled principles based on the existence of a valid and enforceable contract where the applicant has performed all undertakings.

Court orders

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  1. 1.The appeal is hereby allowed
  2. 2.Judgment of the lower court dismissing the suit be and is hereby set aside
  3. 3.The 2nd Appellant shall have costs of the suit both in the lower court and this Appeal
  4. 4.A permanent injunction restraining the Respondent, his agents, servants and employees from annexing, excising, trespassing onto, entering, building on, cultivating, alienating, interfering with or erecting structures on part of Kanyada/Kalanya/820 measuring approximately 252 by 130 feet
  5. 5.The Registrar of Lands, Homa Bay Land Registry to register mutation for 252 feet by 130 feet of Title No Kanyada/Kalanya/820 in favour of Meresah Akoth Otieno as Administrator of the estate of Lawi Otieno Nyateng
  6. 6.An order to the Registrar of Lands, Homa Bay Land Registry to register mutation of 252 feet by 130 feet in favour of Meresah Akoth Otieno as Administrator of the Estate of Lawi Otieno Nyateng
  7. 7.The Respondent to release and hand over the original title in respect of Kanyada/Kalanya/820 to the Land Registrar, Homa Bay within thirty (30) days for purposes of effecting the transfer
  8. 8.In default of compliance, the Deputy Registrar of this Court shall execute all relevant documents for and on behalf of the Respondent

Authorities

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Legislation

  • Law of Contract Act, Cap 23Sections 3(3) and 3(7)
  • Land Control Act, Cap 302 Laws of KenyaSection 6(1)
  • Trustees (Perpetual Succession) Act, Cap 164Interpretation section
  • Law of Succession ActSection 45
  • Civil Procedure ActSections 1A, 3 and 22
  • Civil Procedure Rules, 2010Order 11; Order 1 Rule 9
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (15)

  • John Teleyio Ole Sawoyo vs. David Omwenga Maobe
    [2013] eKLR
  • Ephantus Mwangi & another vs. Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Jabane vs. Olenja
    [1986] KLR 661
  • Mbogo & Another vs. Shah
    (1968) E.A
  • Thrift Homes Limited Vs Kenya Investment Limited
    (2015) eKLR
  • Pius Matene D. Maina vs Director General Kenya Urban Roads Authority & 5 Others
    (2020) eKLR
  • Veronica Wanjiru MARINGA vs Ack Buxton Diocese of Taita Taveta & Another
    (2022) eKLR
  • David Kimani Gitau v Francis Wainaina
    [2016] eKLR
  • Johnson Githaiga Nderitu & 4 Others Vs Nicholas Nderitu Maita & 3 Others
  • Douglas Mbugua Mungai –vs- Harrison Munyi
    Civil Application No. Nai. 167 of 2010
  • Stephen Boro Gitiha – vs – Family Finance Building Society & 3 Others
    Civil Application No. Nai. 263 of 2009
  • DT Dobie & Co. (Kenya) Ltd. –vs- Muchina
    Civil Appeal 37 of 1978
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] KECA573 (KLR)
  • Reliable Electrical Engineers Ltd. V Mantrac Kenya Limited
    (2006) eKLR
  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
On appeal from
Chief Magistrates Court at Homa Bay
CMCELC NO E001 of 2023
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrates Court (Environment and Land jurisdiction), Civil Procedure Act

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, "Jesus Fellowship Church International & another v Asman (Land Case Appeal E034 of 2024) [2026] KEELC 3725 (KLR)", Case Analysis (2026). ELC Appeal (Homa Bay) arising from CMCELC No. E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3725/eng@2026-06-12

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