Simon Odinga v Charles Sande [1987] KECA 31 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sale agreement was subject to an implied condition precedent that the vendor obtain alternative land
- 2.Whether the respondent could rely on the later agreement of March 27, 1980 following amendment of the pleadings
- 3.Whether the failure to obtain Land Board consent under the Land Control Act invalidated the sale
- 4.Whether the vendor held the land in trust for himself and his family under the proviso to section 28 of the Registered Land Act
Key legal issues
#Implied condition precedent
No condition precedent can be implied in the second (1980) agreement; the appeal fails on this ground.
There was no evidence in the written agreement or oral evidence of a conditional precedent. Any implication of a condition that the vendor obtain alternative land could only attach to the first agreement, which was altered in 1980 when the parties agreed on the sale of 5.3 acres. The vendor was selling only part of his land, having retained the balance, and subdivision had been approved by the Commissioner of Lands and the Municipal Council of Kakamega.
Amendment of pleadings to rely on the later agreement
The amendment under Rule 44(2) permitting reliance on the March 27, 1980 agreement was properly granted and this ground of appeal fails.
The respondent had pleaded the 1979 agreement for 11.5 acres, which was rescinded by the later agreement. The respondent promptly applied to amend, the court allowed the amendment to tie up with the evidence, and all the evidence before the court was based on the later agreement of March 27, 1980 for the purchase of 5.3 acres.
Land Control Act consent
The ground was not proceeded with because the Land Control Act does not apply to land within a municipality.
Counsel's ground invoking the necessity of Land Board consent under section 6 of the Land Control Act (Cap 302) was abandoned, as the statute does not apply to land situated within the Municipality of Kakamega.
Trust under the proviso to section 28 of the Registered Land Act
The proviso does not avail the appellant; trust must be specifically pleaded and the family here is not rendered landless.
Trust should be specifically pleaded with particulars. The proviso to section 28 is commonly applied where relatives have interests in land, or where a sale would leave a wife without land to cultivate or children without inheritance. Here the matter had gone through the land board, subdivision was approved, and the appellant's family retained a portion to live on and inherit, so the proviso does not apply.
Legal principles established
#- A condition precedent to a contract of sale cannot be implied against a vendor of part only of his land, especially where subdivision was approved; any such condition, even in a collateral agreement, must be clear and, if part of the main sale agreement, must be in writing.
- A claim of trust must be specifically pleaded with particulars; the proviso to section 28 of the Registered Land Act cannot be invoked where subdivision has been approved by the land board and the vendor's family retains a portion of the land.
- A registered owner who is a trustee holds all the powers of a registered owner but must exercise them in accordance with the trust.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment dismissing the appeal on all grounds, including the alleged condition precedent, the amendment of pleadings, and the trust claim under the proviso to section 28 of the Registered Land Act.
The appellant has not succeeded on any ground of appeal argued. The result is that the appeal fail and so it is dismissed with costs.p. 2
Wrote the judgment
Concurred substantially with Gachuhi JA, adding that any condition precedent must be clear and in writing under section 3 of the Contract Act (Cap 23), and that a registered owner who is a trustee must exercise his powers in accordance with the trust, none of which was pleaded or shown here.
In this case there is no ground for thinking the seller was holding the land in accordance with any trust, and none was pleaded.p. 2
- On appeal from
- High Court of Kenya, Kakamega
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific constitutional provision stated)
Relief refused
#Setting aside the decree of specific performance and substituting a refund of the purchase price
No evidence supported an implied condition precedent, and the matter had gone through the land board with subdivision approved
Declaration that the vendor held the land in trust for his family
Trust was not pleaded in the defence, and the proviso to section 28 does not apply where subdivision was approved and the family retains land
Costs
The appeal is dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There can never be conditional precedent implied on the second agreement. The vendor was not selling his entire land.
That situation, even in a collateral agreement, must be clear otherwise every agreement for sale would be rendered precarious, the seller failing to move until he has found alternative land. If such a condition is part of the main sale agreement then it should be in writing as required by Section 3 of the Contract Act (Cap23).
Trust should specifically be pleased and where possible particulars should be stated.
The appellant has not succeeded on any ground of appeal argued. The result is that the appeal fail and so it is dismissed with costs.
As Apaloo JA also agree there will be an order in terms that Gachuhi, J A has suggested.
Issues in the judgment
#The judgment text contains typographical/OCR errors, e.g. 'Trust should specifically be pleased' (apparently 'pleaded') and 'the Land Control Act does not imply to land within the Municipality' (apparently 'apply'). Quotes are reproduced verbatim as printed.
The coram appears only as a signature block at the end and the case number, neutral citation and High Court appeal details are not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Odinga v Charles Sande [1987] KECA 31 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/31/eng@1987-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.