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Court of AppealDismissedCivil Appeal 33 of 2019

Oginga v Mokoh

Court of Appeal
25 September 2026
4,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who never paid the balance lost the property despite living on it for years—courts demand proof of payment, not promises.

What this practically means

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Executive summary

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The respondent, as vendor, sued in the Environment and Land Court at Migori for a declaration of ownership, eviction, a permanent injunction and damages for trespass over L.R. Kamagambo/Kabuoro/1251, following a failed 1996 sale agreement with the appellant's late husband, who paid Kshs.70,000/= of the Kshs.135,000/= price and remained in occupation. The trial court found the sale void for want of Land Control Board consent, held the appellant a trespasser, granted eviction and injunction, awarded Kshs.10,000/= general damages, and ordered refund of the deposit. The appellant appealed, contending she was ready and willing to pay the balance, that the respondent had frustrated completion by disappearing, that the Tribunal proceedings rendered the suit res judicata, and seeking specific performance. The Court of Appeal, in a unanimous first-appeal judgment, re-evaluated the evidence and dismissed the appeal. It held that readiness and willingness to perform must be shown by conduct, not assertion: the purchaser was directed by the Rongo Land Disputes Tribunal in 2006 to pay the balance or surrender the property, the award was adopted as a court order in 2011, yet no payment was ever made. It distinguished Kitilit v Kibet and Sigei, where constructive trusts arose because the full price had been paid, and declined to impose a constructive trust on the basis of occupation and developments alone. It rejected the res judicata plea as the Tribunal issues differed from those in the ELC suit, and upheld the refund of the deposit as consistent with the Land Control Act's consequences. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge properly evaluated the evidence and determined the parties' respective obligations under the 1996 sale agreement
  2. 2.Whether the earlier proceedings before the Rongo Land Disputes Tribunal and the decree adopted by the Magistrate's Court rendered the respondent's subsequent suit before the trial court res judicata
  3. 3.Whether the appellant established a subsisting legal or equitable interest in the suit property, or otherwise demonstrated an entitlement to specific performance
  4. 4.Whether the reliefs granted by the learned Judge were justified in the circumstances of this case

Key legal issues

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01

Entitlement to specific performance of the 1996 sale agreement

Holding

Specific performance was refused; the purchaser never paid the balance despite the Tribunal award and 2011 court order, so readiness and willingness were not demonstrated by conduct.

Reasoning

The agreement was made in 1996; the Tribunal in 2006 directed payment of Kshs.65,000/= or surrender of the property; the award was adopted as a court order in 2011; yet no payment or deposit in court was evidenced. A present assertion of willingness cannot revive a transaction incomplete for nearly two decades. The Court applied Gurdev Singh Birdi, Nabro Properties and George Njenga Kagai.

p. 5
02

Constructive trust / proprietary estoppel despite want of Land Control Board consent

Holding

The doctrines were distinguished and not applied because only part of the purchase price was paid and non-payment persisted after the Tribunal order.

Reasoning

Kitilit v Kibet and William Kipsoi Sigei involved purchasers who had paid the full purchase price and taken possession. Here only Kshs.70,000/= of Kshs.135,000/= was paid, and the failure to complete persisted even after the 2006 Tribunal direction and 2011 adoption. Prolonged occupation and development alone cannot create an enforceable proprietary interest against a registered proprietor.

p. 7
03

Res judicata arising from the Rongo Land Disputes Tribunal proceedings

Holding

The Tribunal proceedings did not render the ELC suit res judicata because the issues were materially different.

Reasoning

The Tribunal dealt with payment of the balance of the purchase price or surrender of the property; the ELC suit concerned declaration of ownership, eviction, permanent injunction and damages for trespass. The Tribunal proceedings were relevant to the history of the dispute but did not directly and substantially determine the issues later litigated.

p. 8
04

Refund of the Kshs.70,000/= deposit

Holding

The trial court's order for refund was consistent with the statutory consequence of an uncompleted controlled transaction.

Reasoning

Relying on Syedna v Jamil's Engineering Co. Limited, where a buyer has paid but cannot complete, the seller who rescinds must return money paid. The Court found no basis to interfere with the trial Judge's decision on this or any other relief.

p. 8

Legal principles established

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  • On a first appeal the Court re-evaluates the evidence and draws its own conclusions, while making allowance for not having heard the witnesses.
  • A party seeking specific performance must demonstrate readiness and willingness to perform by conduct, not mere assertion.
  • Where a controlled transaction fails for want of Land Control Board consent, the purchaser's remedy is refund of money paid, not specific performance.
  • Equity follows the law; a party seeking an equitable remedy must demonstrate equitable conduct and willingness to perform its own obligations.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Migori
ELC Case No. 192 of 2017 (Formerly Kisii ELC Case No. 103 of 2016)
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate structure of the Constitution and applicable statute (not expressly cited in the judgment)

Relief refused

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Specific performance compelling the respondent to receive the balance of Kshs. 65,000/= and transfer the suit property

The appellant never tendered the balance despite the Tribunal award and court order; readiness and willingness must be shown by conduct, not assertion

p. 5

Imposition of a constructive trust or proprietary estoppel based on long possession and developments

Distinguishable from Kitilit and Sigei: only part of the purchase price was paid and non-payment persisted after the Tribunal order

p. 7

Res judicata bar of the ELC suit based on the Rongo Land Disputes Tribunal proceedings

The Tribunal dealt with payment/surrender; the ELC suit concerned declaration, eviction, injunction and trespass damages

p. 8

Costs

The appeal is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Readiness and willingness, particularly in the context of a claim for specific performance, must be demonstrated by conduct and not by assertion alone.
p. 5Specific performance - proof of readiness and willingness
Equity does not operate in a vacuum. It follows the law. The party seeking an equitable remedy must itself demonstrate equitable conduct and a willingness to perform their own obligations.
p. 7Equitable remedies and conduct of the claimant
The appellant's prolonged occupation and development of the suit property cannot, in those circumstances, by themselves transform an incomplete transaction into an enforceable proprietary interest against a registered proprietor.
p. 7Constructive trust - limits of long occupation
The Tribunal proceedings were, therefore, relevant to the history of the dispute, but they did not render the subsequent suit res judicata.
p. 8Res judicata - Tribunal proceedings vs ELC suit
The appeal is accordingly dismissed with costs to the respondent.
p. 8Final orders - disposition

Issues in the judgment

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minor

Parties' identities transposed in the evidence narrative

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oginga v Mokoh", Case Analysis (2026). Civil Appeal 33 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1985/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.