Isaiah Mathenge & another v Alfred Rugendo Kimotho (Civil Appeal 190 of 1991) [1994] KECA 97 (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 requirements of section 3(3) of the Law of Contract Act (cap 23) were satisfied so as to make the sale agreement enforceable against the two appellants who did not sign it
- 2.Whether the letters written by the first appellant constituted a memorandum or note signed by the party to be charged within the meaning of section 3(3) of the Law of Contract Act
- 3.Whether the trial judge erred in invoking the law of agency when it had not been pleaded
- 4.Whether the advocates had authority to bind the proprietors to a sale of land
- 5.Whether the second appellant's undivided share could be disposed of without his written consent under section 103(2) of the Registered Land Act
Key legal issues
#Compliance with section 3(3) of the Law of Contract Act as regards the second appellant
The appeal of the second appellant succeeds because there was no agreement, memorandum or note signed by him or anyone on his behalf agreeing to sell his share, and his undivided share could not be sold to a third party without his written consent.
The second appellant never signed the agreement for sale, his name did not even appear in it, and he wrote no letter capable of constituting a memorandum or note. Although evidence suggested he had sold his share to the first appellant, no transfer was effected and he remained registered. Under section 103(2) of the Registered Land Act his interest required his written consent to be disposed of to a third party, and none was obtained.
Whether the first appellant's letters constituted a memorandum or note under section 3(3)
Kwach JA held that the two letters contained no commitment to sell to the respondent and could not constitute a memorandum or note signed by the first appellant.
The letter to Koinange merely stated that the first appellant had been shown a sale agreement and would sign only if paid his share of the proceeds; it contained no commitment to sell and was not addressed to the respondent. The earlier letter to co-proprietors merely sought a buyer. On this basis the first appellant's appeal also succeeded. Omolo JA, however, respectfully disagreed with this analysis, finding the letters read together sufficient as a memorandum as regards the first appellant, though the appeal still succeeded on the second appellant's case.
Scope of the advocates' authority as agents for the sale of land
The advocates had authority only to find a purchaser, not to bind the proprietors by executing a sale or transfer; the trial judge erred in invoking agency on this basis, and the point had not been pleaded.
Because the subject matter was real estate, the agents' authority was limited to locating a buyer. Without a power of attorney they could not execute a transfer on behalf of the clients; in effect they were acting as estate agents. The trial judge therefore wrongly upheld the agreement against the appellants on agency grounds.
Legal principles established
#- A contract for the disposition of an interest in land must, under section 3(3) of the Law of Contract Act, be in writing or evidenced by a memorandum or note signed by the party to be charged or a person authorised by him; execution of a legal document is a matter of fact and cannot be presumed or established by estoppel.
- There can be no estoppel against an Act of Parliament.
- A proprietor in common cannot deal with his undivided share in favour of a third party without the written consent of the remaining proprietors under section 103(2) of the Registered Land Act.
- An agent instructed to find a purchaser of real estate has no authority to execute a transfer on the client's behalf unless armed with a power of attorney.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of Mwera J set aside
- 3.Substitution of an order dismissing the respondent's suit with costs
- 4.Appellants awarded costs of the appeal
- 5.If the suit land has been registered in the name of the respondent in execution of the decree, the Land Registrar, Mombasa, to cancel that registration and reinstate as proprietors all the persons named in the land certificate dated 27th January 1971
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (specific provision not stated in the judgment)
Relief refused
#Specific performance of the sale agreement against the first and second appellants
No agreement, memorandum or note signed by the appellants or their authorised agent, and the second appellant's undivided share could not be disposed of without his written consent
Reliance on agency to bind the appellants to the sale
The advocates' authority, the subject matter being real estate, extended only to finding a purchaser and not to executing a transfer absent a power of attorney
Costs
The respondent's suit dismissed with costs; the appellants awarded the costs of this appeal (costs both here and below).
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.
The execution of a legal document is a matter of fact. It is either executed or not executed.
It is therefore plain beyond argument that there was no concluded agreement both in fact and in law between the appellant and the Porbunderwallas which could be enforced by a decree for specific performance.
No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.
In the result, I would allow this appeal, set aside the judgment and decree of Mwera J and substitute therefor an order dismissing the respondent's suit with costs. I would also give the appellants the costs of this appeal.
I would also order that if the suit land has been registered in the name of the respondent in execution of the decree, the Land Registrar, Mombasa, do cancel this registration and reinstate as proprietors all the persons named in the land certificate dated 27th January 1971.
Issues in the judgment
#The two judgments differ on whether the first appellant's letters constituted a memorandum or note under section 3(3) of the Law of Contract Act; the appeal nonetheless succeeds on the second appellant's case.
The judgment does not state the civil appeal number of this appeal in the Court of Appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaiah Mathenge & another v Alfred Rugendo Kimotho (Civil Appeal 190 of 1991) [1994] KECA 97 (KLR)", Case Analysis (1994). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/97/eng@1994-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.