Mbora v Njagi (Environment and Land Appeal E009 of 2023) [2025] KEELC 8546 (KLR)

paid but the Respondent declined to accept the refund and instead registered a restriction against the suit land while taking possession of the land without any right. 5. As the registered proprietor of the suit land, the Appellant filed a suit seeking to have the restriction removed and for vacant position. The Respondent filed a defence and counterclaim in which she asserted that she was a purchaser for value having paid almost the full purchase price and added that the Appellant breached the sale agreement by failing to transfer the suit land after the succession proceedings concerning the land were concluded. The Respondent sought specific performance or a refund of purchase price with interest and damages. 6. The Appellant submitted that at the hearing, the sale agreement dated 12/8/2009 was admitted by the parties with the Appellant maintaining that the sale transaction could not be completed because the requisite consent of the Land Control Board (LCB) was not obtained rendering the agreement faulty by virtue of Section 6 of the Land Control Act. 7. He asserted that he was ready and willing to refund the sums paid by the Respondent, which according to him was the only lawful remedy available to the Respondent but that the Respondent insisted that she wanted the suit land and not a refund. 8. In its judgment, the trial court dismissed the Appellant’s claim and allowed the counterclaim. The trial court directed that the Appellant was to transfer the suit land to the Respondent upon payment of the balance of Kshs 35,000/=. The court found that the Appellant breached the agreement. 9. The Appellant submitted that the trial court did not properly apply section 6 (1) of the Land Control Act which stipulates that transactions involving agricultural land must be sanctioned through the consent of the relevant LCB. The Appellant relied on court decisions supporting the view that a purported sale of land without the LCB consent is void. That by seeking specific performance and insisting on a transfer, the Respondent was attempting to enforce a null agreement. 10. The trial court was faulted for finding that the Appellant breached the sale agreement. The Appellant argued that a party cannot breach a contract which is void. That since the agreement was not enforceable; the Respondent could not rely on it to support the claim for specific performance. Further, that the Respondent breached the agreement by entering the suit land and deriving benefits from it in contravention of the agreement including harvesting crops without authorization. 11. The Appellant faulted the Learned Magistrate for granting specific performance on the basis that it would contravene statutory requirement and impose undue hardship on the defendant. 12. The Appellant relied on the protection of rights of a registered proprietor under section 24 and 25 of the Land Registration Act. He argued that the Respondent failed to prove her case on a balance of probabilities. He emphasised that the only remedy available to the Respondent was a refund of the sum of Kshs 315,000/= admitted less 35% for the breach of contract occasioned by the Respondent making the refundable sum Kshs 183, 750/=. 13. The Appellant submitted that being an equitable remedy, specific performance was only available to a party who approaches the court with clean hands, demonstrates performance of their obligations and anchors their claim on a valid and enforceable contract. 14. The Respondent submitted that under the terms of the sale agreement, the suit land was to be transferred to the Respondent once Embu High court Succession Cause No 183 of 2004 was concluded. She tabulated the payments made, which show that by 30/12/2015, she had paid the sum of Kshs 315,000/=. She explained that the succession cause was finalised on 28/3/2017 but the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8546/eng@2025-11-25 2

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refused to sign the transfer documents prompting the Respondent to place a restriction against the land. 15. The Respondent cited Willy Kimutai Kitilit V Michael Kibet (2018) KECA 573 (KLR) on the point that the lack of LCB consent does not preclude the court from giving efiect to equitable principles and in particular the doctrine of constructive trust. 16. The Respondent maintained that she did not breach the contract but it was the Appellant who was in breach. She relied on the letter dated 4/6/2018, which indicated that the Appellant was no longer interested in completing the sale transaction. She maintained that she was entitled to specific performance and that the court rightfully allowed the counterclaim. 17. The issue for determination is whether the court should allow the appeal and set aside the judgment of the trial court. It is not in dispute that the Appellant and the Respondent entered into the sale agreement dated 12/8/2009 for the sale of the sale land at the agreed consideration of Kshs. 375,000/ = and that the Respondent paid Kshs. 315,000/= towards the purchase price. 18. Under clause 4 of the agreement, the Respondent was required to pay Kshs. 228,000/= pending hearing and determination of Embu HCCC Succession Cause No. 183 of 2004 that was pending in court. The balance of Kshs. 100,000/= was to be paid after the consent to transfer was obtained from the relevant LCB. Clause 6 addressed what was to happen if the vendor could not transfer the agreed portion of 0.3 hectares after the conclusion of the succession proceedings. 19. According to the Respondent, the succession proceedings were concluded on 25/3/2017 but the Appellant developed cold feet about concluding the sale transaction. The Appellant’s reason for not completing the transaction was that the requisite consent of the Land Control Board (LCB) was not obtained rendering the agreement faulty by virtue of Section 6 of the Land Control Act. It was incumbent upon the Appellant to apply for the LCB consent to transfer the suit land to the Respondent. There is no evidence to suggest that he took steps to procure the LCB consent after the finalisation of the succession proceedings despite clause 7 obligating him to do this. 20. The finding of the court in Willy Kimutai Kitilit V Michael Kibet (2018) KECA 573 (KLR) is that the lack of LCB consent does not preclude the court from giving efiect to equitable principles and in particular the doctrine of constructive trust. Having received a substantial part of the purchase price, a constructive trust was created in favour of the Respondent. 21. Sections 24 and 25 of the Land Registration Act, which vests absolute ownership of land on a registered proprietor and safeguards the rights of a proprietor respectively, cannot be used as a shield by a proprietor who freely enters into a sale agreement and receives consideration with the intention of transferring their interest over the land to a purchaser for value. Section 25(2) expressly states that the section does not relieve a proprietor, like the Appellant, from a duty or obligation the person is subject to as a trustee. 22. The trial court rightfully found that the sale agreement was valid and that it was the Appellant that breached the sale agreement dated 12/8/2009. The Respondent did not need to claim an overriding interest over the suit land. The Respondent’s letter dated 17/4/2018 requesting the Land Registrar to place a restriction against the suit land explained that the Appellant failed to transfer the land to the Respondent after the land was transferred to his name following conclusion of the succession cause and that he was in the process of selling the suit land to a third party. She was protecting her interest in the land through the restriction. 23. The Appellant did not lead evidence to prove that the Respondent illegally occupied the suit land or the circumstances under which the Respondent took possession of the land. The Respondent’s evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8546/eng@2025-11-25 3

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was that she had been in possession since 2009. The Respondent had paid a substantial part of the consideration by 30/12/2015. The Appellant sued the Respondent in 2018 seeking the removal of the restriction and vacant possession of the land. That was after the succession cause had been finalised and he developed cold feet towards completion of the sale of the suit land to the Respondent. 24. The appeal fails and is dismissed with costs to the Respondent. DELIVERED VIRTUALLY AT EMBU THIS 25TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Diana Kemboi-Court Assistant No appearance for the parties https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8546/eng@2025-11-25 4

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