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ELCPartially AllowedNot stated in the judgment

Appellant v Respondent (Appeal from Nanyuki CMCCC No. 118 of 2018 (OS))

Environment and Land Court
20 August 2024
2,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a land sale without Land Control Board consent can still be enforced through equitable principles, but damages cannot be awarded without a counterclaim.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against the decision of Hon. Ben Mararo, Principal Magistrate, delivered on 23/8/2022 in Nanyuki CMCCC No. 118 of 2018 (OS), which declared that an acre excised from Nanyuki/Marura Block 8/152 belonged to the Respondent and directed registration in his name, while simultaneously awarding the Appellant Kshs. 350,000/= as general damages for breach of contract. The dispute arose from a sale agreement dated 24/3/2009 under which the Respondent's late mother, Rosemary Wairimu Migwi, purchased an acre from the Appellant for Kshs. 175,000/=, paying a deposit of Kshs. 150,000/= with the balance due by 24/7/2009 but only paid on 19/10/2016. The Appellant argued the contract became void through the purchaser's breach and want of Land Control Board consent. K. Bor, J, dismissed the appeal. The court applied Court of Appeal authority holding that lack of LCB consent does not preclude the court from giving effect to equitable principles such as the doctrine of constructive trust. It found that although the purchaser breached by late payment, the vendor never served a completion notice, never rescinded the contract and never refunded the deposit, so the agreement remained enforceable. The court further held that the trial court erred in awarding general damages since the Appellant had never counterclaimed for them, and on the Respondent's cross-appeal set aside the award of Kshs. 350,000/=. The appeal was dismissed, the cross-appeal allowed, and each party ordered to bear its own costs for both the appeal and the cross-appeal.

Questions the Court framed

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

  1. 1.Whether the appeal should be allowed by setting aside the trial court's judgment declaring that the acre hived off from Nanyuki/Marura Block 8/1252 belonged to the Respondent and was to be registered in his name, or whether the cross-appeal should be allowed

Key legal issues

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01

Whether the sale agreement became void for want of Land Control Board consent and for the purchaser's breach in late payment of the balance

Holding

The agreement was not rendered void; the vendor's failure to serve a completion notice, rescind or refund the deposit left the agreement enforceable, and lack of LCB consent does not bar the doctrine of constructive trust

Reasoning

The court agreed with the trial magistrate that, following Court of Appeal authority, absence of LCB consent does not prevent a court from applying equitable principles including constructive trust. Although the purchaser breached by paying the balance of Kshs. 25,000/= only in 2016, the vendor never exercised his remedies under condition 4(2)(a) of the Law Society Conditions of Sale: he served no completion notice, did not rescind, and did not refund the Kshs. 150,000/= deposit. The transaction was therefore never terminated and equity, which aids the vigilant, favoured enforcing the agreement.

p. 5
02

Whether the award of general damages of Kshs. 350,000/= to the Appellant could stand

Holding

The award could not stand because the Appellant had not counterclaimed for general damages

Reasoning

The first appellate court found that the trial magistrate awarded general damages against the Respondent for breach although the Appellant, who defended by replying affidavit, never counterclaimed for damages or gave particulars of any claim. In the absence of a counterclaim there was no basis for the award, and on the Respondent's cross-appeal the award was set aside.

p. 5

Legal principles established

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  • Lack of Land Control Board consent does not preclude a court from giving effect to equitable principles such as the doctrine of constructive trust
  • A vendor who neither serves a completion notice, rescinds the contract nor refunds the deposit cannot treat a sale agreement as terminated despite the purchaser's default in paying the balance
  • A trial court cannot award general damages in favour of a party who never counterclaimed for them

Court orders

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  1. 1.The appeal fails and is dismissed
  2. 2.The cross appeal dated 21/11/2022 filed by the Respondent succeeds
  3. 3.The award of general damages of Kshs. 350,000/= by the Learned Magistrate to the Appellant is set aside
  4. 4.Each party will bear its own costs for the appeal and the cross appeal

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Nanyuki
Nanyuki CMCCC No. 118 of 2018 (OS)
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (the judgment does not state the enabling provision expressly)

Relief refused

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Appellant's prayer to set aside the trial court judgment

The lack of LCB consent did not render the agreement void; the vendor never served a completion notice nor rescinded the contract nor refunded the deposit, so the agreement remained enforceable

p. 5

Costs

Each party will bear its own costs for the appeal and the cross appeal.

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 appeal fails and is dismissed. The cross appeal dated 21/11/2022 filed by the Respondent succeeds. The award of general damages of Kshs. 350,000/= by the Learned Magistrate to the Appellant is set aside. Each party will bear its own costs for the appeal and the cross appeal.
p. 5Final orders - dismissal of appeal, allowance of cross-appeal, setting aside of damages and costs
the lack of LCB consent does not preclude the court from giving efiect to equitable principles such as the doctrine of constructive trust.
p. 5Effect of absence of Land Control Board consent on equitable relief
Based on the maxim that equity aids the vigilant and not the indolent, the court found that the Appellant did not serve a completion notice, rescind the contract or refund the deposit towards the purchase price
p. 3Vendor's remedies upon purchaser's default
The trial court awarded the Appellant general damages of Kshs. 350,000/= against the Respondent for breach of the terms of the agreement yet the Appellant had not counterclaimed for general damages.
p. 5Impermissible award of damages absent a counterclaim

Issues in the judgment

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minor

The date of the trial court's judgment is inconsistently stated within the judgment

minor

The parcel number is inconsistently referred to as Block 8/152 and Block 8/1252 in different passages

minor

The appellate case number of this appeal is not stated in the judgment

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, "Appellant v Respondent (Appeal from Nanyuki CMCCC No. 118 of 2018 (OS))", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5867/eng@2024-08-20

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