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ELCDismissedNot stated in the judgment as provided

Peter Abiud Mukonyi v Kiptabut arap Kemei & another [2019] KEELC 3687 (KLR)

Environment and Land Court
5 April 2019
3,721 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who never completed payment or got Land Control Board consent lost his claim, recovering only his deposit refund.

What this practically means

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Executive summary

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The plaintiff sued the 1st and 2nd defendants seeking declarations that a sale of the suit parcel to the 2nd defendant was null and void, damages and mesne profits for trespass, and costs. His case was that he entered a sale agreement dated 26th September 2005 with the 1st defendant for ¼ acre at Kshs.320,000, of which he paid Kshs.102,000, took possession in 2006, and was later evicted by the 2nd defendant. The 1st defendant died on 17th April 2014; no substitution was made within one year, so the suit abated against him and proceeded only against the 2nd defendant, who claimed he bought 1/8 acre from Martha Kemei, the 1st defendant's wife, obtained Land Control Board consent and title, and had been in occupation since 2006. In cross-examination the plaintiff admitted the agreement was signed by Martha Kemei, not the registered owner; that he never completed the purchase price; and that he could not obtain Land Control Board consent. He also admitted he was not in occupation. The court held there was no privity of contract between the plaintiff and the 2nd defendant; the plaintiff's claim lay against the 1st defendant whose suit had abated; the transaction was void for want of Land Control Board consent under Section 6 of the Land Control Act; and the court declined to invoke constructive trust where the purchase price was unpaid. Though acknowledging the Court of Appeal's decision in Willy Kimutai Kitilit applying equity to such contracts, the court found the 2nd defendant, as registered owner, could not trespass on his own land. The suit was dismissed with no orders as to costs, but the court ordered that the refund of the purchase price deposited at the defendants' advocates' office be released to the plaintiff within 21 days.

Questions the Court framed

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

  1. 1.Whether the plaintiff has a claim against the 2nd defendant as the suit against the 1st defendant had abated
  2. 2.Whether the plaintiff has proved that the 2nd defendant is a trespasser

Key legal issues

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01

Whether the plaintiff can sustain a claim against the 2nd defendant after abatement of the suit against the 1st defendant

Holding

The claim against the 2nd defendant cannot be sustained; there is no privity of contract and the plaintiff's claim lay against the 1st defendant

Reasoning

The suit against the 1st defendant abated for want of substitution within one year of his death on 17th April 2014. The plaintiff contracted with Martha Kemei, the 1st defendant's wife, who was not the registered owner and held no power of attorney, and she was never joined. There being no privity of contract between the plaintiff and the 2nd defendant, the claim against the latter could not stand.

p. 4
02

Whether the 2nd defendant committed trespass

Holding

No; the plaintiff failed to prove possession and the 2nd defendant is the registered owner

Reasoning

Trespass to land requires an unjustifiable intrusion upon land in the possession of another. The plaintiff admitted he was not in occupation, having left to rent premises elsewhere, while the 2nd defendant had occupied, obtained Land Control Board consent and registered title since 2006. An owner in possession cannot trespass on his own land.

p. 5
03

Whether constructive trust should be invoked where the purchase price was not fully paid and Land Control Board consent was not obtained

Holding

No; the court declined to invoke constructive trust on these facts though it acknowledged the Kitilit decision applies equity case-by-case

Reasoning

Both parties agreed the transaction concerned agricultural land and no Land Control Board consent was obtained, rendering it void under Section 6 of the Land Control Act. Although the Court of Appeal in Kitilit applied constructive trust and proprietary estoppel to such contracts, the court held that invoking equity here, where the plaintiff paid only Kshs.102,000 of Kshs.320,000, would not be just.

p. 5

Legal principles established

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  • A sale of agricultural land without Land Control Board consent is void under Section 6 of the Land Control Act
  • An owner in possession of land cannot trespass on his own land
  • A sale agreement for land signed by a person without a power of attorney from the registered owner cannot bind the owner

Court orders

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  1. 1.The plaintiff's suit against the 2nd defendant is dismissed with no orders as to costs
  2. 2.The refund of the purchase price deposited by the 1st defendant at the defendant's advocates' office be released to the plaintiff within 21 days

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction over a claim for trespass, general damages and mesne profits relating to land; no constitutional or statutory basis expressly invoked in the judgment.

Relief refused

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Declaration that the sale by the 1st to 2nd defendant was illegal, null and void

No privity of contract between plaintiff and 2nd defendant; suit against 1st defendant abated; transaction void for want of Land Control Board consent

p. 5

General damages and mesne profits for trespass

Plaintiff failed to prove possession; 2nd defendant is the registered owner

p. 4

Costs

Suit dismissed with no orders as to costs

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.

The plaintiff therefore has not proved the case against the 2 nd defendant for trespass as he is the registered owner of the suit land and cannot trespass on his own land and therefore the same is dismissed with no orders as to costs.
p. 5dismissal - trespass and costs
I will therefore exercise my discretion to order that the earlier offer by Counsel for the defendant to the plaintiff to pick his refund of the purchase price which was deposited by the 1st defendant at the advocates’ office be released to the plaintiff within 21 days.
p. 5final orders - refund of purchase price
There is no privity of contract between the plaintiff and the 2 nd defendant so to speak and that his claim only lies with the 1 st defendant whom he purportedly entered into a sale agreement.
p. 4privity of contract
The law is very clear that sale of agricultural land requires the consent of the Land Control Board of which failure to obtain the same makes the transaction null and void.
p. 4Land Control Act consent

Issues in the judgment

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minor

The judgment cites 'Section 3(3) of the raw of Contract Act that came into force on 1st June, 2003' - the Law of Contract Act came into force on 1st June 2003, but the section's commencement is commonly 1st June 2003; 'raw' appears to be a typographical error for 'Law'

minor

The court states the decision in Willy Kimutai Kitilit applied constructive trust where Land Control Board consent was not obtained, yet declines to apply it on these facts without fully reconciling the apparent conflict with David Sironga Ole Tukai

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, "Peter Abiud Mukonyi v Kiptabut arap Kemei & another [2019] KEELC 3687 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3687/eng@2019-04-05

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