Njogu & 8 others v Thuo Investment Company Limited (Environment and Land Case 42''B'' of 2022) [2025] KEELC 8561 (KLR)
The bottom line
#A Kenyan court ordered a land seller to transfer plots to buyers even without a written sale agreement, because the buyers proved they paid in full.
What this practically means
#Executive summary
#Key legal issues
#Existence of an enforceable contract absent a written Sale Agreement
Although the absence of the written agreement weakens the case, it is not an absolute bar; equity recognises constructive trusts arising from payment and common intention
The Law of Contract Act requires land dispositions to be in writing, but the court may give effect to oral agreements supported by part performance or find a constructive trust where it would be inequitable for the seller to deny the sale. The Plaintiffs produced receipts proving payment of the full price of Kesh 2,250,000, which the Defendant did not deny, and the Defendant admitted the land was still available.
Whether a constructive trust was established over the suit property
A constructive trust arose in favour of the Plaintiffs, making the Defendant a constructive trustee notwithstanding registration in its name
Applying the principles in Shah v Mombasa Bricks & Tiles, the court found common intention, detrimental reliance through payment of the full purchase price, and unconscionable conduct by the Defendant in denying the accrued proprietary right. Registration of the property in the Defendant's name does not vitiate the Plaintiffs' equitable rights.
Whether specific performance should issue rather than damages or a refund
Specific performance was granted because the land remained available, damages were inadequate, and forcing the Plaintiffs to accept a refund would be unjust
The Defendant testified that the land is still there and that the only outstanding step was payment of conveyancing fees. Where the property is available, equity demands that the purchaser receive the particular parcels paid for rather than a refund. None of the circumstances barring specific performance (hardship, unconscionability, adequacy of damages) applied.
Burden and standard of proof
The burden lay on the Plaintiffs to prove, on a balance of probabilities, a valid enforceable contract and their performance of their obligations
The court reiterated that the party seeking specific performance must demonstrate the existence of the contract and readiness to perform. The Plaintiffs discharged this burden through receipts and bank statements proving full payment, while the Defendant, who claimed non-payment, failed to adduce evidence of the agreed purchase price or the alleged shortfall.
Legal principles established
#- A constructive trust may arise independently of a written agreement under Section 3(3) of the Law of Contract Act where the purchaser has paid the full purchase price and it would be inequitable for the legal owner to deny the beneficial interest
- Direct contributions to the purchase price by a non-legal owner justify the inference of a common intention necessary for the creation of a constructive trust
Court orders
#- 1.An order of specific performance directing the Defendant to transfer to the Plaintiffs the 3 acres of piece of land immediately
- 2.An order that the Defendant transfers to the Plaintiffs the titles of Plot No. 255, 257 and 259 in respect of the 3 acres of Block No. 1/6428 Thika Kabati
- 3.The Plaintiffs are directed to pay the conveyancing fees to enable the excision and immediate transfer of specific parcels of Block No. 1/6428 Thika Kabati to each Plaintiff
- 4.Costs of the suit together with interest thereon at Court rates awarded to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit for specific performance of a sale of land); Article 159(2)(d) cited on case management discretion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogu & 8 others v Thuo Investment Company Limited (Environment and Land Case 42''B'' of 2022) [2025] KEELC 8561 (KLR)", Case Analysis (2025). ELC Case No. 42 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8561/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.