Ngeny v Tireito & another (Civil Appeal 2 of 2018) [2021] KECA 464 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 1971 land sale despite no written contract, confirming that possession counts and titles grabbed during a court case are invalid.
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 land could be sold without a written contract
- 2.Whether a land transaction involving agricultural land can be considered valid without a Land Board Consent to transfer
- 3.Whether the 1st respondent was entitled to the award of 26.5 acres or the 24 acres
- 4.Whether limitation of time applied to the 1st respondent's suit
- 5.Whether the appeal was incompetent and should be struck out for inordinate delay in filing the record of appeal
Key legal issues
#Whether the land could be sold without a written contract
Even absent a written sale agreement, the pre-2003 proviso to section 3(3) of the Law of Contract Act saves a transaction where the purchaser took possession in part performance; the 2nd respondent also admitted in his defence that an agreement existed.
The Court adopted Peter Mbiri Michuki v Samuel Mugo Michuki, setting out section 3(3) of the Law of Contract Act and its proviso saving contracts in part performance. The 1st respondent was found to have been in occupation from 1971 throughout the proceedings, satisfying the proviso. Further, the 2nd respondent's statement of defence admitted an agreement existed, albeit for 24 acres, so the existence of an agreement was not in doubt.
Whether the transaction was valid without a Land Control Board consent to transfer
The Land Control Board register and letter of consent on record established that consent was issued and the transaction approved; absent contrary evidence, the documents were genuine and authentic.
The trial judge had scrutinised the register of the Land Control Board and the letter of consent, which showed an entry dated 4th June 1971 recording the sale of a 1/4 undivided share and that the transaction was approved. The 2nd respondent's denial of attendance was contradicted by the register. On appeal, the Court found no evidence adduced to controvert the authenticity of the consent and declined to disturb the finding.
Whether the 1st respondent was entitled to 26.5 acres or 24 acres
The 1st respondent was entitled to 26.5 acres; simple arithmetic on the 106-acre parcel (53 acres to one partner, the remainder divided equally) yielded 26.5 acres, and the source of the appellant's extra 2.5 acres was the 1st respondent's land.
The trial judge reasoned that of the 106 acres, 53 went to one partner, leaving 53 to be divided equally between the 2nd respondent and another, yielding 26.5 acres each. The judge also noted that if the 2nd respondent only had 24 acres, he could not explain where the extra land with the houses, which he sold to the appellant, came from. The only logical conclusion was that the extra land was the 2.5 acres claimed by the plaintiff.
Whether limitation of time applied to the 1st respondent's suit
The cause of action arose in May 1999 when the appellant and 2nd respondent trespassed and sought to reclaim 2.5 acres, not in 1971; the suit filed in 1999 was well within the 12-year limitation period.
Relying on definitions of cause of action from Read v Brown, Letang v Cooper and Drummond Jackson v Britain Medical Association as adopted in Attorney General v Andrew Maina Githinji, the Court held that a cause of action is the fact situation entitling one to a remedy. The plaint averred uninterrupted possession from 1971 until May 1999 when the trespass occurred; therefore time began to run in 1999 and the suit, filed the same year, was within time.
Whether titles obtained during the pendency of the suit could stand
Alienation and registration of the suit property during pendency of litigation breached the doctrine of lis pendens and amounted to contempt of court; the trial court was entitled to cancel the titles and order retransfer.
Despite an order of 14th February 2003 restraining the appellant and 2nd respondent from sub-dividing or dealing with the suit property, they transferred the properties into their names during the suit. The Court invoked Naftali Ruthi Kinyua v Patrick Thuita Gachure, Bellamy v Sabine and Mawji v US International University on lis pendens, holding that such alienation was null and could not defeat the plaintiff's claim, and that the judge properly exercised his discretion in cancelling the titles.
Legal principles established
#- Section 3(3) of the Law of Contract Act, in its pre-2003 form, does not defeat a contract for disposition of an interest in land where an intending purchaser has taken possession in part performance.
- A party who alienates, sub-divides or registers property in their name during the pendency of litigation is in breach of the doctrine of lis pendens, which overrides registration under section 23 of the Registered Title Act.
- A claim for recovery of land accrues when the plaintiff's possession is interrupted, not when the contract of purchase was made; the limitation period runs from the breach or trespass.
Court orders
#- 1.Appeal dismissed with costs to the 1st respondent
- 2.Judgment of the Environment & Land Court delivered on 26th February 2014 affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment & Land Court at Eldoret
- E.L.C. No. 441 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the Environment & Land Court (Constitution of Kenya, Article 164; Court of Appeal Rules)
Relief refused
#Application to strike out the appeal for incompetence/time bar raised by the 1st respondent
The application ought to have been raised earlier under the relevant Court of Appeal Rules with a supporting affidavit setting out the timelines allegedly flouted; striking out would not serve the overriding objective.
Appellant's contention that the 1st respondent was entitled to only 24 acres
The trial judge's arithmetic on the division of the 106-acre parcel showed the 1st respondent's share was 26.5 acres; the Court agreed with that finding.
Appellant's plea that she be allowed to keep her 2.5-acre title obtained during pendency of the suit
Her actions ran afoul of the doctrine of lis pendens and amounted to contempt of court.
Costs
Appeal dismissed with costs to the 1st 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.
In sum, from our analytical synthesis and re-evaluation of the entire evidence adduced before the trial court, we come to the conclusion that this appeal is totally devoid of merit. Accordingly, we dismiss it with costs to the 1st respondent.
This reveals that the cause of action arose as against the 2nd respondent on May 1999 and not in the year 1971. The action was therefore not statute barred as the 1st respondent had 12 years from the year 1999.
The actions of the appellant and the 2nd respondent of proceeding to alienate the property and having it registered in their names during the pendency of the litigation process, ran afoul of the doctrine of lis pendens and was also tantamount to contempt of court.
in absence of any other evidence adduced by the 2nd appellant to controvert the authenticity of the said consent, we hold that the said documents were genuine and authentic.
even if there was no sale agreement, the 1st respondent only had to satisfy the Court that he had been in possession, which he did as the Court found that he had been in occupation of the suit land from the year 1971
Issues in the judgment
#Judgment refers to the 2nd appellant and 1st defendant/2nd defendant inconsistently with the party designations, and the numbering of paragraphs jumps from 39 to 45, indicating missing or renumbered paragraphs in the copy supplied.
The judgment states the appellant instituted the suit in 1991 in the submissions but records the plaint as dated 3rd June, 1999 elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onduo v Ochola & 2 others[2026] KESC 3 (KLR)23 Jan 2026
- Sambo & another v Mwakio & another (Civil Appeal E082 of 2022) [2025] KECA 913 (KLR)[2025] KECA 913 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Ngeny v Tireito & another (Civil Appeal 2 of 2018) [2021] KECA 464 (KLR)", Case Analysis (2021). Civil Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/464/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.