Kiserian & another v Santian & 2 others

Transmara/Moita/550 and all resultant subdivisions were a controlled transaction within the meaning of Cap 302 Laws of Kenya. (iv) That the Learned Trial Magistrate erred in law and fact by failing to note that the parties did not meet the conditions on the Agreements the subject of the transactions. (v) That the Learned Trial Magistrate erred in law and fact by sanitizing an illegality and justifying the transaction of proprietary transfer of interests to the 1st Respondent on a null and void transaction. (vi) That the Learned Trial Magistrate erred in law and in fact by failing to take into account the evidence tendered in court and the submissions brought before him arriving at the impugned decision. (vii) That the Learned Trial Magistrate erred in law and fact by alluding to unfunded evidence of fraud by the 1st Respondent to the prejudice of the Appellants. (viii) That the Learned Trial Magistrate erred in law and fact by failing to take into account that the 1 st Respondent was a stranger to the 1st Appellant. (ix) That the Learned Trial Magistrate erred in law and fact by dismissing the defence tendered by the Appellants based on hearsay evidence produced or procured by the 1st Respondent. 3. On the strength of the above grounds of Appeal, the Appellants prayed for: (i) The appeal be allowed. (ii) The judgment dated 7th December 2003 be set aside and substituted with an order dismissing the Respondents claim in the lower court case E020/2023. (iii) Costs of the Appeal be awarded to Appellants. P a g e 2 | 11

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4. The court directed disposal of the application by way of written submissions. Appellants submission 5. The Appellant framed and submitted on 5 issues for determination. 6. On issue 1, the Appellant framed the issue as to whether Rebecca Kerosi paid the entire purchase price for L.R No. Transmara/Moita to the 1st Appellant. 7. The Appellant submits that only Kshs.1,450,000/= was paid pursuant to the Agreement for sale which was acknowledged and that the balance of Kshs.600,000/= was not paid. 8. That therefore Rebecca Kerosi did not purchase Transmara/Moita/550 by paying the entire purchase price as captured in the Agreement for sale. Thus, the Agreement for sale become null and void for want of consideration. 9. Issue number 2, the Appellant submits that due to the lack of land control Board consent, and the sale having been a controlled transaction under Section 6(1) and under the provisions of Section 6 (1) (c) the lack of the consent, renders the purported sale null and void for all purposes. 10. In support of this limb of submissions the Appellant places reliance on the decisions in the case of David Sironga Ole Tukai Vs. Francis Arap Muge, Kiprotich Arap Kirui, Johanah Kiprono Arap Mosonik, to support the submission that the lack of land control Board consent renders a sale transaction null and void. 11. On issue number 4, The Appellant submits that no proprietary interest passed from the 1st Appellant to Rebecca Kerosi as the transaction was a nullity in view of lack of Land Control Board consent, hence the rule of Nemo dat quod non habet does not apply to the circumstances of this case. 12. On issue number 5, The Appellants submit that the 2nd Appellant was a Bonafide purchaser for value, without any notice P a g e 3 | 11

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and is protected by the law; under Sections 24 and 26 of the Land Registration Act. 13. On the strength of the above the Appellant submit that the Appeal be allowed. 1st Respondent’s Written Submissions 14. The 1st Respondent did not frame and submit on any issue for determination but instead submitted on the grounds of Appeal. 15. On grounds 1, 2, 6, 7 and 9 of the Memo of Appeal. The Respondent submit that no proper transfer forms and/or consent from the lands office were produced to support the registration of the 2nd Appellant as the proprietors of the suit owner thus the court should make an inference that the suit property was obtained fraudulently. Consequently, no protection of the law attaches to the suit property in favour of the 2 nd Appellant under Section 26 of the Land Registration Act. 16. In support of this limb of submissions, The Respondent places reliance on the Supreme Court decision in the case of Dina Management Limited Vs. County Government of Mombasa and 5 Others. 17. The 1st Respondent submits that had the 2nd Appellant conducted due diligence he would have found out that the letter of consent to transfer in his name had been cancelled by the Board. 18. On grounds 3, 4, 5 and 8 of the Appeal the Respondent submits that the 1st Appellant went to the lands Board to obtain consent to sell the suit property to one Rebecca hence giving Rebecca the necessary interest to enter to an Agreement for sale with the 1st Respondent. Thus, the 1st Appellant having obtained consent, the transaction was not a nullity. 19. On the strength of the above, the 1 st Respondent submits that the Appeal be dismissed. P a g e 4 | 11

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20. Before framing the issues for determination, the court makes note of the following undisputed issues herein; (i) The 1st Appellant had executed an Agreement for sale between herself and on Rebecca Kerosi on 10 th May 2016, over L.R No. Transmara/Moita/550, This Agreement was produced as P.Exhibit No. 1. (ii) There was a second Agreement for sale between Rebecca Kerosi and the 1st Respondent dated 24th of May 2016, this Agreement was produced as P.Exhibit 3. (iii) A third Agreement of sale was dated 16.01.2023 D.Exhibit No. 1 was entered between the 1st and 2nd Appellants. (iv) The 1st Respondent is in occupation of the suit property pursuant to the 2nd Agreement for sale. 21. Having analysed the Record of Appeal, the submissions of the parties and considered the law the issues for determination are: (i) Whether or not the Appeal is merited? (ii) Who bears the costs of the Appeal? 22. In order to determine the first issue as to whether or not the Appeal is merited, the court shall determine the following sub issues? (i) What is the importance of the3 Agreements for sale executed separately by some of the parties to this Appeal? (ii) What is the importance of non-compliance with Section 6 (1) of the Land Control Act? 23. This being a first appeal, the court is aware of is duties as stated in the case of Sielle Vs. Associated Motor Boat Limited and Others (1968) EA 123 where the court held interalia, “An appeal to this court is by way of a retrial and the principles upon which this court acts in such an appal are well settled. briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither P a g e 5 | 11

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seen nor heard the witnesses and should make due allowance in this respect….” 24. Guided by the above principles, the court proceeds to evaluate the evidence before the trial court vis a vis the sub issues it has framed for determination. 25. As observed in the paragraph above, an Agreement for sale dated 16th May 2016 between Nanyamal Ene Kiserian as vendor and Rebeccah Kemuma Kerosi was exhibited, as P.Exhibit 1, the said Agreement relates to Transmara/Moita/550 measuring 41 acres, at a consideration of Kshs. 2,050,000/= out of which a deposit of Khs,1,450,000/= was paid leaving a balance of Khs.600,000/= to be paid after surveying. 26. Thus, Agreement was drawn by Samuel Nyariki Ondieki Esquire who witness the execution thereof, between the parties and 6 other witnesses also appended their signatures. In relation to this Agreement the 1st Appellant testifying as DW2 indicated that she entered into a lease Agreement but did not sell her property. In cross-examination she confirmed that she had gone to the land control Board to obtain consent to transfer. She stated she had been paid Kshs.1,250,000/= and there was a balance which she had not claimed the balance. 27. PW1, Mr. Nyariki Ondieki Samuel, the Advocate who prepared the Agreement for sale equally testified that his instructions were to prepare an Agreement for sale and not a lease Agreement as a lease Agreement could not be of Millions of shillings. 28. In respect of this particularly Agreement for sale, the trial court found that the Agreement for sale between the 1st Appellant and Rebecca Kerosi was in compliance with Section 3 (3) of the law contract Act; and was enforceable in law. 29. I have looked into the said Agreement dated 11 th May 2016 and I agree with the trial court’s finding that the same was a valid Agreement for sale and not a lease Agreement. P a g e 6 | 11

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30. What then was the importance of the Agreement for sale dated 11th May 2016, the importance was that the 1st Appellant having sold her interest in Transmara/Moita/550 did not retain any interests sellable to any other person; in accordance to the maxim of Nemo dat quod non habet. In respect of first Agreement for sale the court finds that the 1 st Appellant having sold had no residual interest capable of selling. 31. The court finds the 2nd Agreement was also valid, as between Rebecca and 1st Respondent with regard to the 3rd Agreement for sale between the 1st and 2nd Appellants dated 13.01.2023 was not valid, for reasons that; (i) The 1st Appellant had already sold her interest before the subdivision, (ii) She had already executed transfers in favour of the 1 st Respondent and consent to transfer had been issued in favour subdivision of Transmara/Moita/550 was done, and the mutation form was produced as P.Exhibit 4 and that the 1st Respondent parcel after subdivision was Transmara/Moita/706; measuring 10 acres. 32. The 1st Respondent took possession and obtained the Land Control Board consent to transfer which he exhibited as P.Exhibit No. 6; but the 1st Appellant refused to transfer to him yet she had transferred to all the other purchasers; but instead transferred to 2nd Appellant to any other person. 33. With respect to the 2nd Agreement for sale between Rebecca Memosi and the 1st Respondent, dated 24.05.2016 P.Exhibit 3. This Agreement was made between Rebecca Kemosi and 7 purchasers including the 1st Respondent. In its recital the Agreement acknowledged that Rebecca Kemosi had bought the entire Transmara/Moita/550, and subdivided to the purchasers. the property was to be This 2nd Agreement was the foundation of the plaintiff suit before the trial court. P a g e 7 | 11

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34. The question arising, is whether Rebecca Kemusi had any sellable interest to sell to the 1st Respondent. 35. The execution of the 2nd Agreement mainly was as a result of the interests purchased by Rebecca Kemusi from the 1st Appellant but pending obtaining of the relevant consent and registration of transfers. 36. That placed Rebecca Kemusi as a beneficial owner and not a registered owner. 37. The evidence before the trial court indicates that of the 1 st Respondent’s in line with the maxim of Nemo dat quod non Habet, the 1st Appellant did not have any sellable interests to enable her enter into an Agreement for sale with the 2 nd Appellant. The court thus finds that the 3rd Agreement for sale to have been invalid. 38. The court had fund it as an undisputed fact that the 1 st Respondent is in occupation of the suit property, and this is significant in two ways, that the 2nd Appellant at the time of executing the Agreement for sale did not visit the suit property, as had he done so, he would have found the 1st Respondent to be in possession. The taking of possession by the 1st Respondent was sufficient notice of his interest in the suit land and the doctrine of innocent purchase for value submitted by the 2 nd Appellant thus does not arise. 39. The 2nd significance of the occupation by the 1 st Respondent as a purchaser who had paid purchase price pending completion is that a constructive Trust was created; in his favour. 40. On the sub issue of non-compliance with Section 6 of the Land Control Act, the Appellants submit that the same nullified any agreements for sale and have cited several decisions to support this limb of submissions. 41. The jurisprudence in respect of the non-compliance with Section 6 of the Land Control Act has changed significantly from the time the decision cited by the Appellants were made. P a g e 8 | 11

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42. From the decision of Macharia Maina Mwangi Vs. David Mwangi Kagiri (2017) eKLR, the court observed the change in jurisprudence at paragraph 22 where the Court of Appeal observed interalia, “we take note that the judicial decisions cited by the Respondent were all made prior to the promulgation of the 2010 constitution of Kenya and before the overriding principles were enacted in the Appellate jurisdiction Act Cap 8 Laws of Kenya.” 43. At paragraph 29 of the said decision the court noted further, “the totality of our re-evaluation of the facts and applicable law in this case leads us to conclude that the Honourable Judge erred in failing to consider that the Appellants were in possession of the suit property, that the Respondent had created a Constructive Trust in favour of all individuals who had paid the purchase price for the respective plots and the trial court erred in failing to note that the consent of the Land Control Board is not required where a Trust is created in Agricultural land.” 44. The above position was reiterated in the Willy Kimutai Kitilit Vs. Michael Kitet, whereat paragraph 26 of the decision the court equally observed as follows: - “for the reasons in paragraph 20, 21, 22, 23, 24 and 25 above we are in Agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive Trust and proprietary estopped are applicable and enforceable to land subject of the Land Control Act, though this is a subject to the circumstances of particular case. Upon the application of the equitable doctrines the court in its discretion may either award damages and where damages are inadequate remedy grant the equitable remedy of specific performance.” 45. The above two decisions of Macharia Mwangi Maina and Will Kimutai Kitilit were cited with approval by the Supreme Court of Kenya. P a g e 9 | 11

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46. In its decision in the case of Amind Shah and Others Vs. Mombasa Bricks and Tiles Limited where the court stated interalia “In Macharia Mwangi Maina and 87 Others Vs. Davidson Mwangi Kagiri Civil Appeal No. 6/2021 consolidated with No. 26, 27 of 2011 (2014) and in Willy Kimutai Kitilit Vs. Michael Kibet (2018) eKLR, the Court of Appeal in matters involving the sale of land held that equitable doctrines of constructive applicable Trust and and proprietary enforceable to estopped land, subject are to circumstances of the land…. 78 The applicability of the doctrine of constructive Trust is now settled within our jurisdiction and is applied to land sale transactions…..” 47. From the above decisions, the court does not agree with the submission by the Appellants that the sale transactions were a nullity for lack of Land Control Board consent for sale were a nullity. 48. In the Appeal before court, there was a Land Control Board consent to transfer between the 1st Appellant and the 1st Respondent, the same was exhibited as P.Exhibit No. 6 while the transfer forms (incomplete) were exhibited as P.Exhibited No. 7. 49. Having analysed the sub issues as above the court shall now answer the main issue as to whether or not the Appeal is merited? It is the court’s finding and view that the registration of the 2nd Appellant as the owner of Transmara/Moita/706 was procured irregularly as a consent to transfer had already been issued to the 1st Respondent by the Land Control Board and hence the decision to recall the consent vide P.Exhibit No. 10. 50. The court does find that the Learned Trial Magistrate applied the law correctly to the facts and issues before him and reached a correct decision hence there is no merit in the Appeal and the judgment of the Trial Court is hereby upheld in its entirety. P a g e 10 | 11

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51. The costs of the suit and the appeal are hereby granted to the 1st Respondent, and for avoidance of doubt, the orders of the trial court are affirmed as follows; (a) Declaration issues that 1st Respondent is entitled to specific performance over and in respect of L.R Transmara/Moita/706. (b)An order hereby issues directing the 2nd Respondent to rectify Register of Transmara/Moita/706 by cancelling the entry in respect of the 2nd Appellant, and substituting an entry registering the 1st Respondent as the owner of the Transmara/Moita/706. (c) The Court Administrator Kilgoris to execute all necessary documents so as to effect registration of 1st Respondent. (d)A permanent injunction restraining first and 2 nd Appellants from interfering with the 1st Respondents use and occupation of Transmara/Moita/706 as issued by the trial court. (e) Costs of the suit and Appeal awarded to the 1st Respondent. Dated at Kilgoris this 8th day of May, 2025. Hon. M.N Mwanyale Judge In the presence of CA – Emmanuel/Sylvia Ms. Mireri for the 1st Respondent Mr. Nyambati for the Appellants Ms. Osebe for 2nd and 3rd Respondents P a g e 11 | 11

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