Gituro v Kiama (Environment and Land Appeal E031 of 2024) [2025] KEELC 6728 (KLR)
The bottom line
#The High Court upheld a land buyer's right to force a seller to complete the sale, ruling that missing Land Control Board consent does not void the deal.
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 trial Court erred in finding that there was a valid and enforceable contract of disposition of an interest in land
- 2.Whether the trial Court erred in finding that the award of damages, in the circumstances of the case, was not sufficient and in issuing an order of specific performance
Key legal issues
#Validity and enforceability of the land sale contract under Section 3(3) of the Law of Contract Act
The trial Court did not err in finding there was a valid and enforceable contract for the disposition of an interest in land; the vendor who received a deposit and gave possession created a constructive trust conferring equitable rights on the purchaser
The contract satisfied Section 3(3) of the Law of Contract Act (in writing, signed, witnessed). The vendor accepted a substantial deposit, gave the purchaser vacant possession, and permitted the purchaser to develop the land. Having accepted part payment, the vendor's attempted rescission could not defeat the purchaser's equitable interest; a constructive trust arose protecting against unjust enrichment.
Whether the trial Court properly exercised discretion in granting specific performance
The trial Magistrate properly exercised discretion; specific performance was available to a purchaser who demonstrated readiness and willingness to complete by paying the balance into Court
Specific performance is discretionary and will not be disturbed on appeal absent a misdirection or plainly wrong decision. The terms of the contract, parties and property were sufficiently identified, and the Respondent demonstrated readiness and willingness by paying the balance of Kshs.1,400,000 into Court. Lack of Land Control Board consent did not invalidate the transaction where the vendor sought to rely on the omission dishonestly.
Effect of failure to obtain Land Control Board consent on a land sale agreement
Failure to obtain Land Control Board consent within six months does not render the transaction void; equity and fairness preclude a party from using the Land Control Act to escape contractual obligations
Relying on Aliaza v Saul, the Court endorsed the view that equity and fairness, guided by Article 10 of the Constitution, require the Land Control Act to be interpreted so as not to aid a wrongdoer. A vendor who freely entered into and acted upon an agreement cannot rely on lack of consent to avoid just obligations, whether on grounds of constructive trust or equitable estoppel against unjust enrichment.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and arrive at its own independent conclusions
- A vendor who receives part payment and puts the purchaser in possession creates a constructive trust in favour of the purchaser, conferring binding equitable rights
- Failure to obtain Land Control Board consent does not render a fully performed land transaction void; the Land Control Act should not be used to aid a wrongdoer
- Specific performance is an equitable remedy granted at judicial discretion where a valid enforceable contract exists and the claimant is ready and willing to perform
Court orders
#- 1.The appeal is dismissed with costs
- 2.The finding of the trial Learned Magistrate is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court at Ruiru (SPM Court, Civil Suit No. E15 of 2023)
- E15 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the decision of the Principal Magistrate's Court (appeal from SPMC ELC Case No. E15 of 2023)
Relief refused
#Appellant's prayer that the appeal be allowed and the judgment of the lower Court be set aside and substituted with prayers as per the Plaint
The Court found the trial Magistrate properly exercised discretion in granting specific performance and the appeal lacked merit
Costs
The appeal was dismissed with costs (costs to the 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.
Ultimately, I find that there is no merit in this appeal which I proceed to dismiss with costs. The finding of the trial Learned Magistrate is herein upheld. It is so ordered.
The Appellant having received part payment of the purchase price and having put the Respondent into possession of the suit land, had created a constructive trust in favour of the Respondent who had now acquired equitable rights which were binding.
It is time, I think, that this Court spoke in unmistakable terms that it would not, in this day and age, rubber-stamp fraud and dishonesty by holding as null and void agreements freely entered into by sellers of agricultural land
The Plaintiff must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action.
Issues in the judgment
#Purchase price balance inconsistently stated: the agreement records a balance of Kshs.1,600,000, but the judgment elsewhere refers to a balance of Kshs.1,400,000
Internal date contradiction: written submissions dated January 24, 2022 are recorded though the appeal was filed in 2024
Respondent's name is not stated in the judgment; the Respondent is referred to only as 'Respondent'/'purchaser'
Anachronistic observation on Section 3(3) of the Law of Contract Act referring to contracts between May 2010 and March 2018 while the agreement was dated June 2020
The judgment states the trial Magistrate 'dismissed the Appellant's suit... and also the Respondent's defence and counterclaim' yet the trial court granted specific performance to the Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gituro v Kiama (Environment and Land Appeal E031 of 2024) [2025] KEELC 6728 (KLR)", Case Analysis (2025). Ruiru Civil Appeal (from SPM Court at Ruiru Civil Suit No. E15 of 2023) - Memorandum of Appeal dated 4/04/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6728/eng@2025-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.