Arumba v Mbega & another (Civil Appeal 114 of 1986) [1988] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 1966 land sale survived the seller's death and lost documents, splitting the plot between buyer and heirs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a suit can be brought upon an oral contract or on secondary evidence of a lost written contract for the disposition of an interest in land
- 2.Whether the 1966 agreement between the Appellant and Mbega Oeri was proved and whether it was void for want of Land Control Board consent
- 3.Whether the Appellant's payment and development gave rise to a resulting or constructive trust in his favour
- 4.Whether the Appellant had acquired title by adverse possession
- 5.What relief, if any, should be granted in place of the judgment below
Key legal issues
#Proof of the 1966 contract for the disposition of an interest in land without the original writing
The contract was proved either by admissible secondary evidence of the lost writing or by part performance through possession, development and partial payment.
Section 3(3) of the Contract Act requires writing, but its proviso excepts suits where the purchaser has taken possession in part performance. The Evidence Act permits secondary evidence, including oral accounts, where the original was destroyed. The Appellant's evidence of the fire and the agreement was uncontradicted, and his long possession and development of the plot could not be explained by the Respondents.
Whether absence of Land Control Board consent voided the agreement
No Land Control Board consent was necessary while the Settlement Fund Trustees held the land, since section 218(5) of the Constitution exempted transactions to which the Trustees were a party.
The trial judge relied on pre-1967 land control provisions but overlooked section 218(5), as amended by Act No. 14 of 1965, which exempted Settlement Fund Trustees' transactions. An agreement to sell settlement land is inchoate without the Trustees' consent, making them parties to it; the Trustees' consent suffices without recourse to a Land Control Board.
Whether a resulting trust arose in favour of the Appellant
The majority (Platt JA, with Gachuhi JA) held the heirs hold the land on a resulting trust as tenants in common with the Appellant, apportioning shares by contribution and development.
Applying the principle that where several persons purchase property in the name of one, the property is deemed held on a resulting trust, the Appellant's payment of the transfer fee, his development expenditure and the Trustees' acquiescence gave him an equitable share. It would be unconscionable, given the Respondents' delay and contempt, to evict him.
Whether the proper remedy was a declaration and specific performance rather than a trust and partition
Apaloo JA dissented: upon a binding contract of sale the vendor held as trustee for the purchaser, entitling the appellant to a declaration in terms of the plaint and conveyance on payment of the outstanding loan, not to a partition.
Relying on Lysat v Edwards and Fry on Specific Performance, a vendor who dies before completion may be compelled through his heirs; specific performance cannot be ordered piecemeal. The Respondents, having no legal or beneficial title and having acted in contempt, could not claim an equity to shares.
Adverse possession as a defence
The issue was precluded by the amendment backdated under section 35 of the Limitation of Actions Act to the date of the writ, by which time 12 years had not elapsed.
The 1984 amendment to the defence and counterclaim, backdated to 30th September 1977, prevented a finding of adverse possession because 12 years had not run by that date. The Appellant did not challenge the amendment in the appeal, so the point could not be pursued.
Legal principles established
#- On a first appeal, the appellate court must review and weigh the evidence itself while bearing in mind the trial court's advantage of seeing and hearing the witnesses.
- Where an original document has been destroyed or lost, secondary evidence of its contents, including oral accounts, is admissible.
- Transactions to which the Settlement Fund Trustees are a party are excluded from the constitutional land-control consent requirement under section 218(5) as amended.
- A valid contract for the sale of land makes the vendor a trustee in equity for the purchaser, and the contract may be enforced against the vendor's personal representatives and heirs even after death.
Court orders
#- 1.A declaration that the 1st and 2nd Respondents and the Appellant hold the land on a resulting trust as tenants in common
- 2.When the land comes to be divided it shall be divided as set out in the judgment
- 3.The Respondents shall execute such necessary documents of transfer in favour of the Plaintiff as may be necessary
- 4.The counter-claim is dismissed
- 5.The land be divided equally between the parties taking into account portions sold by the parties (Gachuhi JA)
- 6.The appellant shall pay the balance of any amount due to the Settlement Fund Trustee (Gachuhi JA)
- 7.The Appellant to have the costs of the appeal; costs of the suit in the High Court to be borne by each party (Platt JA); alternatively each party to bear its own costs of the appeal and of the High Court (Gachuhi JA)
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Platt JA reviewed the evidence on first appeal, found the 1966 sale contract proved (by secondary evidence after destruction of the original, or by part performance), held the trial judge erred on section 218(5) of the Constitution (Settlement Fund Trustees being a party, so Land Control Board consent was unnecessary), and held the heirs hold the land on a resulting trust as tenants in common with the Appellant.
it is necessary for the Court to determine that the heirs of Mbega hold the land on a resulting trust for the Appellant and the heirs as tenants in commonp. 8
Wrote the judgment
Gachuhi JA agreed with Platt JA's orders but additionally directed that the land be divided equally between the parties taking into account portions sold, that the appellant pay the balance due to the Settlement Fund Trustees, and that each party bear its own costs.
I would allow this appeal in part.p. 9
Wrote the judgment
Apaloo JA agreed the contract was proved and that no Land Control Board consent was needed, but dissented from the resulting-trust/partition remedy: on a valid contract for sale the vendor becomes a trustee for the purchaser, and the appellant was entitled to specific performance and a declaration in terms of the plaint, not a share of the plot. He could not concur in any order partitioning the land.
Accordingly, like Platt JA I would allow the appeal and set aside the decision appealed from but I am unable to concur with the order of partition which my Lord has proposed.p. 15
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction
Relief refused
#Apaloo JA refused the partition/tenancy-in-common remedy proposed by the majority, holding instead for specific performance of the whole contract
Specific performance cannot be granted piecemeal; the contract was for the whole plot
The Respondents' counterclaim for eviction, mesne profits and damages
Dismissed by both judges; the Respondents were themselves in contempt of the injunction
Costs
Platt JA: the Appellant to have the costs of the appeal, and the costs of the suit in the High Court to be borne by each party. Gachuhi JA: each party to bear its own costs of this appeal and of the High Court.
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.
I would therefore allow the appeal and substitute the following order:
A declaration will be granted to the Appellant that the 1st and 2nd Defendants and the Appellant hold the land on a resulting trust as tenants in common
the Respondents shall execute such necessary documents of transfer in favour of the Plaintifi as may be necessary;
the counter-claim will be dismissed; and
I would order that the Appellant should have the costs of the appeal and the costs of the suit in the High Court will be borne by each party.
I would allow this appeal in part.
The land be divided equally between the parties taking into account portions sold by the parties.
it is the duty of this Court on first appeal to review and weigh up the evidence giving the Appellant the benefit of its own judgement on the facts
When the document has been lost any type of secondary evidence may be admissible, including therefore oral evidence, (Section 68(2)).
The moment you have a valid contract for sale, the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser
Issues in the judgment
#The two judges' costs orders conflict: Platt JA awards the Appellant the costs of the appeal while Gachuhi JA orders each party to bear its own costs of the appeal and of the High Court.
The remedy of the majority is not fully aligned: Platt JA orders division as set out in his judgment while Gachuhi JA orders an equal division, and Apaloo JA's separate opinion declines the partition remedy altogether.
The judgment refers inconsistently to the plot number, describing it as Plot No. 47 in the main judgment and as plot No. 74 in Apaloo JA's judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arumba v Mbega & another (Civil Appeal 114 of 1986) [1988] KECA 91 (KLR)", Case Analysis (1988). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.