Arumba v Mbega & another (Civil Appeal 114 of 1986) [1988] KECA 91 (KLR)

have been put in Mbega Oeri’s account. The Appellant also developed the plot which was 47 acres in extent and was estimated to be worth shs. 470,000/- at the trial. The Settlement Fund Trustees never queried his possession or asked him to move. 3. In 1975 the two Defendants emerged. Miruka Mbega, the elder brother returned from some place unspecified and visited the plot. He found the Appellant living in it. Miruka Mbega, now the First Defendant/ Respondent, brought a succession case to prove that he and his younger brother (aged six years at the time of his father’s death and so presumably 12 years old in 1975) were Mbega Oeri’s heirs. It appears from the evidence of Mr. Ambuso (D.W.4) that when an Allottee dies, the Settlement Oficers refer the case to the Succession Court to determine the heirs. Miruka Mbega got a letter from the Assistant Chief to comply with Section 120 of the Registered Land Act (Cap 300) which then applied. 4. In the first of the succession cases, the Appellant was involved; but it was held that Miruka Mbega should be declared the heir and hold the land in trust for himself and his brother. The Appellant appealed successfully and the case was ordered to be retried. Miruka Mbega got the same order as before. It is not known what issues were canvassed in these succession trials. It was of course wrong to include the Appellant in the first trial. He was not a candidate to be an heir. But while his claim to the land existed, the land was not clearly a part of Mbega Oeri’s property. If Mbega had sold the property, it was not available to the heirs. 5. The proper decision for the Succession Court to have made was that Miruka Mbega and his brother were heirs, and if in appropriate proceedings as administrators, the land in question or part of it was found to be that of the deceased ’s estate, they would inherit Mbega’s portion as heirs. But the succession Court decided that Miruka Mbega and his brother were the heirs and should own the land. The Settlement Oficers appear to have tentatively accepted this opinion and registered them as the descendants of Mbega, allowing them to take over the unpaid loans. 6. This situation prompted these proceedings. The plaint was dated 30th September, 1977. The Appellant sought the following reliefs in his plaint, as relevant at this stage:a) a declaration that the 1st and 2nd Defendants (i.e. Miruka and Omwancha Mbega) were holding plot No. 47 Isoge Settlement Scheme as trustees for the Plaintifi; and b) an order that the Defendants execute the necessary documents of transfer of plot No. 47 Isoge Settlement Scheme in favour of the Plaintifi. 7. There were the other usual reliefs. The Appellant conceived of the case as one in which he could not defeat the Defendants, now Respondents, as heirs; but he could ask that property which had been included in their inheritance be declared to be outside their inheritance and be transferred to him. The heirs must act as their father had failed to act before he died. The learned Judge treated the Respondents as legal personal representatives. 8. The Respondents defended their cause by denying that their father had ever sold the plot in question to the Appellant. They denied that the Appellant had paid shs. 276/- to the Settlement Fund Trustees. They explained the Appellant’s long possession of the land by saying at first that Mbega Oeri, their father, had leased the land for 10 years approximately. Their father had not agreed to transfer the land as neither the family nor the Trustees had given their consent. If there were any such agreement, as the Plaintifi alleged it would be void for lack of consent of the Land Control Board. The Respondents further alleged that the land still belonged to the Settlement Fund Trustees who will absolutely allot it to the Settler on payment of the purchase loan and any agreement which did not include the Trustees as a party would be invalid. The Respondents would show that they were the heirs under customary law, https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 2

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and that as a result of Gesima District Court Succession Case No. 2 of 1976 they have been registered by the direction and consent of the Trustees as the heirs, settlers and owners, and had undertaken to pay all the loans due for the purchase of the plot. Consequently the Appellant had no registrable interest which could be the subject of specific performance. Therefore the plaint must be dismissed. 9. The Appellant then took out an injunction summons on 6th October 1977 to restrain the Respondents from “entering or in any way interfering” with the plot pending the hearing of the case. Apart from this the Appellant sought to restrain the registration of the Respondents as successors or assigns of their father or the transfer of the land to them. The Respondents of course pointed out, on this last attack, that the Trustees were not a party to the Court proceedings. In the end Nyarangi J (as he then was), granted the injunction on the first prayers on 28th October 1977. 10. There seems to have been a further injunction order served on Mr. Ambuso causing him to stop any dealings with the land. It seems that his register had not been rectified in accordance with the last succession decision, because he was awaiting the outcome of the suit. So it may well be that the Respondents had exaggerated the efiect of registration. Nevertheless they did interfere with the plot, and Mr. Ambuso agreed that the Respondents had taken over their father’s loans. 11. The Appellant sold 3 or 5 acres to Onyando Mbado in 1975. But he broke that contract and sold to Makaburi instead. In 1977 he sold 7 acres to Joel. The Respondents were very ofiended. But Miruka Mbega sold ten acres to one Onkangi in August 1984 in order to repay the loan; these payments were made in June and August 1984 and amounted to shs. 14,122/-. The agreement was exhibited. It was a sale not of just two acres about two years before the trial; it was not just a case of borrowing as Miruka Mbega made out in his evidence. But great play was made of the Appellant selling land and not repaying the Trustees. It was also pleaded that the Appellant had been in contempt of Court, for selling the land. At least one sale of the Appellant was well before Nyarangi J’s injunction. But it was the Respondent Miruka who had been restrained by that injunction from entering or in any way interfering with the land. It was not the Appellant. The Trustees seem to have allowed Miruka Mbega to repay the loan. It was the Respondent who was in contempt of Court with the aid of the Settlement Oficers. 12. But the Respondents had one more surprise up their sleeves. On 30th July, 1984, the Respondents asked to amend their defence and be allowed to counterclaim. The reasons were that they were the heirs of their father who had never sold the plot, and that the Plaintifi had sold part of the land in dispute. The buyers had taken occupation. The Respondents therefore wanted to counterclaim for the eviction of the Appellant and the parties to whom he had sold, (who should be added, as parties,) and mesne profits. The application was granted as prayed in the absence of Mr. Nyairo on 23rd November, 1983, who was engaged elsewhere. The Appellant was given leave to reply to defence and defend on the counter-claim. 13. The amended defence dated 23rd November, 1984 deleted the allegation that Mbega Oeri leased the land and otherwise streamlined the issues. The counterclaim prays for the eviction of the Appellant, his servants agents or workmen and that they be perpetually restrained from entering or interfering with the land. There were prayers for mesne profits and damages. 14. The amendment was not challenged after it had been granted ex parte and was of great importance. It precluded the learned Judge from finding that the Appellant had acquired the title or interest of Mbega Oeri by adverse possession. If there had been no sale in 1966, if Mr. Ambuso had returned all the original documents of that period to Headquarters, so that there was no indication that Mbega Oeri wished to transfer the land left in his records; supposing there was, therefore, no recorded consent for the transfer by the Settlement Fund Trustees; the Appellant somehow had acquired possession against the interest of Mbega Oeri in 1966. Twelve years later in 1978 the Appellant was still in possession. https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 3

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Even supposing that adverse possession commenced with the death of Mbega in 1969, 12 years later in 1981 the Appellant was still in possession. He had never lost it. The succession proceedings concerning him had been nullified. His period of adverse possession was stopped only by the counterclaim at least three years after his right to the land had been acquired by adverse possession, either against Mbega and his heirs, and indeed the Trustees. In those circumstances it is surprising that in 1984 the amendment was not challenged. 15. Perhaps it was that everyone had turned up Section 35 of the Limitation of Actions Act (Cap. 22) and found that the amendment must be backdated to the date of the writ on the 30th September, 1977. By that date of course, 12 years had not elapsed. The learned Judge could not do otherwise than to accept his predecessors’ orders and find 12 years had not elapsed. The Appellant lost his best defence on the Respondents’ own case, which in accordance with the latest views in England that I am aware of, he ought not to have lost. (See Liptons Xash Registers and Business Equipment Ltd. vs Hugin (G.B.) Ltd. (1982) 1 All ER 595). It is unusual to allow a defence to be amended which will defeat a right acquired for several years under the Limitation of Actions Act and when the Defendants themselves have long delayed in exercising their rights. But the Appellant has not challenged the amendment in this appeal. 16. That being the situation, it will now be convenient to deal with the trial Judge’s finding that the 1966 agreement as alleged was void, even if it existed. In those days, land control was found in the Constitution itself. In Section 218 thereof transactions concerning agricultural land undertaken without consent became void for all purposes. But Section 218 (5) as amended by the Constitution of Kenya (Amendment) Act 1965 (Act No. 14 of 1965) provides as follows:“ (5) The provisions of this section shall not apply to any transaction to which the Government of Kenya, or any person or authority acting on behalf of the Government, the Central Land Board or the Settlement Fund Trustees or (in respect of Trust Land) a County Council is a party.” 17. Thus whilst the learned Judge was right to say that there were provisions for land control before the Land Control Act (Cap. 302) of 1967, he did not apparently take all those provisions into account. In this case the Defendants themselves have pleaded in their first defence that the land belonged to the Settlement Fund Trustees, who were a party, and although that was not maintained in the amended Defence, that is the efiect of the evidence of Mr. Ambuso. He made it clear that an allottee could transfer the land with the consent of the Settlement Fund Trustees. It is clear that an agreement to sell or transfer the land is inchoate without the consent of the Trustees. They have preserved their right to control the use of their own land. They are therefore parties to such an agreement. Consequently to Land Control Board consent is necessary, while the Trustees hold the land. It becomes necessary the moment they have transferred absolute title to a settler. But it is known that administratively the Trustees are prepared to be advised by the Land Control Board in the matter of giving their consent. It does not invalidate the contract if the Trustees give their consent and the parties do not go to the Land Control Board. This may well be necessary when a Land Control Board had not yet been established for a particular area, in which the Trustees hold Settlement land. The learned Judge was therefore in error as the Appellant claims in ground 2 of his memorandum of appeal. 18. The Appellant is then concerned to attack the finding that there was no contract between the Appellant and Mbega Oeri. There seem to be several aspects of this case. https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 4

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19. The starting question is whether a suit can be brought without a written contract, a matter taken up in ground 1 of the memorandum. Section 3(3) of the Contract Act (Cap. 23) provides as follows:“(3) No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorised by him to sign it." Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intended purchaser or lessee who has performed or is willing to perform his part of a contract- (1) has in part performance of the contract taken possession of the property or any part thereof; or (ii) (not applicable). 20. The Appellant put his case in a series of submissions. First, there was a document drawn up by the Settlement Ofice Clerk signed by both parties and witnessed by several people. Two witnesses Mirondia, the Appellant, and his cousin Okone testified to these facts. They say the document looked something like a “copy” document they produced. The original was lost in a fire. The Appellant says that secondary evidence was admissible. 21. Second, if no evidence is admissible of the written agreement, nevertheless there was part performance to prove the agreement. The Appellant entered into possession from June 1966 and is still in possession. His possession was in furtherance of the contract because he and his cousin developed the land, building, houses and living on the land. The appellant acted as owner by selling ofi two small plots. Thirdly there is no evidence of anyone conversant with the facts in 1966 against the Appellant. Fourthly, assuming that Miruka Mbega and Omwancho Mbega, the Respondents, assumed the inheritance of Mbega Oeri, nevertheless up to 1969, when Mbega Oeri died only the Appellant and Mbega were involved in the payment for this land. Whatever was paid by 1975 had been paid by the Appellant and/or Mbega. Arising out of their contributions a resulting trust arose, so that in equity they are either tenants in common, or perhaps the claim is that a joint tenancy arose with a right of survivorship in the Appellant, following upon the death of Mbega. That was not very clear, but at any rate, the Appellant claimed that the Respondents, as heirs, held the land on trust for him. 22. The Respondents were almost scornful of the Appellant’s attempts to prove the written agreement. In their view the document produced was simply a forgery. There was no agreement of any kind. They were not concerned to explain the Appellant’s possession. That meant nothing except an interference with their property not amounting to adverse possession, and the two sales to third parties were unwarranted. It did not show part performance. The Appellant had no right or interest of any kind in Plot No. 47. The learned Judge agreed with the Respondents. 23. Now it is the duty of this Court on first appeal to review and weigh up the evidence giving the Appellant the benefit of its own judgement on the facts while bearing in mind the advantage that the trial Court had of seeing and hearing the witnesses. (Pandya v. R. [1957] EA 336). 24. Taking an overall view of the evidential situation one finds that in efiect, the Appellant and his cousin were the only witnesses who knew what happened in 1966 and from then until 1975. It is of great importance that Mbega and his family never lived on the plot in question from 1966 to 1969 nor from then until 1975. The family of Mbega never saw fit in 1969 to claim the plot when Mbega died. That was never explained; but more important for this purpose, they did not ascertain the position on the land in 1969. In 1975 the Appellant (and his cousin) were living on the land having developed it. The https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 5

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third Defence witness only knew of the resale of part of the land to him in 1975. The Appellant was not over scrupulous about that sale; apparently he did not behave fairly. 25. Mr. Ambuso only knew of the events of 1966 from his records, and what happened after 1975. His records were not complete as the original documents had been sent to Headquarters. The Appellant was criticised for not getting supporting documents. Mr. Ambuso was called to refute the Appellant’s case. He knew where the documents were and did not get them. There was no person who gave evidence who could challenge or contradict the appellant, either on what happened in 1966, or the fact of the fire caused by the Kipsigis, or the failure of Mbega to carry out his promise to transfer the plot. There is no doubt that in the absence of the original documents Mr. Ambuso’s statement, that there was no record of Mbega’s intention to transfer the plot to the Appellant, could not mean anything of importance, without the original documents. There was 26. Mbega’s illness and death not long afterwards, at a place outside the Settlement Scheme, which would inhibit records being made. 27. The Appellant’s evidence remains uncontradicted that there was an agreement drawn up by the Clerk in the Settlement Ofice, which was destroyed by fire. I need not overstress the rules of evidence. By Section 64 of the Evidence Act (Cap. 80) the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself being produced for the inspection of the Court, (Section 65). Secondary evidence includes oral accounts of the contents of a 28. document given by some person who has himself seen the document, (Section 66(c)). Documents must be proved by primary evidence except when the original has been destroyed or lost, (Sections 67 and 68(1)(c)). When the document has been lost any type of secondary evidence may be admissible, including therefore oral evidence, (Section 68(2)). 29. The Appellant stated that his documents were lost in the fire. He was not contradicted. He made up a copy of his agreement. He was not quite straight forward about it. The Respondents think it was forgery. This is going a little too far. It was the Appellant himself who corrected the earlier impression and explained the fire. Counsel ought to have been more careful in the way the document was adduced. But in the end unless the fire could be challenged, oral evidence could be adduced. In fact it was. There are oral descriptions of what the agreement was and looked like. If the fire was not accepted no secondary evidence should have been allowed on the record. In fact it was, apart from the document. 30. It is appreciated that the lack of candour over the presentation of the alleged copy of the original caused a poor impression. But there were two 31. witnesses to the agreement which could not be challenged by the defence. The most important result was that the Appellant and his cousin went into possession and built their houses and developed their property. Is it not true that the weakest part of the defence is the failure to account for the Appellant’s possession; possession and development and the acceptance of five small payments towards the loan? 32. Looking at the evidence as a whole it seems to me that the preponderance of evidence is that there was a contract. Either the evidence of the writing is accepted or the contract was part performed by possession, development and partial payment. No doubt the case could have been made stronger with greater attention to detail. But with regret, I must difier from the learned Judge’s reading of the evidence, because he failed to see that the Appellant could not be contradicted by anyone. He put too much weight on Mr. Ambuso’s evidence, and at the same time, he failed to give weight to the possession and development of the plot. He found the contract if it existed null and void without properly construing Section 218 (5) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 6

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33. On that basis it is necessary to consider far-reaching efiects of the decision in Onyango Omoke vs. John Omoke , Civil Appeal No. 10 of 1981, which approved of Bennett, J.’s decision in David Nyaniwange vs. Stanley Ondoro, Kisumu High Court Civil Case No. 74 of 1968. The principle relied on is set out in the 3rd Ed. of the Halsbury’s Laws of England Vol. 38 which is still good law. “ The principle that the property is deemed to be held on a resulting trust applies where several persons purchase property in the name of one.” 34. In this case, the Appellant paid shs. 257/- to the Settlement Oficer and the plot was transferred into Mbega’s name. It was therefore a payment by the Appellant which had the efiect of initiating the purchase of the property in the name of Mbega. What happened thereafter? It is not known if Mbega himself made any payments. All Mr. Ambuso could do was to say that the provisional document showed that shs. 14,122/- was owed and shs. 3,962/- were arrears of interest, with survey fees. On the land charge of shs. 4,000/- there was a balance of shs. 2,647/- and he had paid shs. 1,353/-. It is not quite clear from these accounts why the learned Judge thought that the purchase loan was shs. 20,000/-. But if that is right and the sum of shs. 14,122/- was paid by the Respondents, who paid the balance of shs. 5,878/-? The Appellant claimed that he had paid these sums. But he was not sure what he had paid, and his receipts had been burnt. It is one thing to accept the Appellant’s word for a transaction of which he knew the details, it is another thing to accept his loss of memory as indicating that he had paid these balances. That would be going too far. It is not known who paid this balances. 35. Continuing with the quotation from Halsbury, referred to in Omoke’s case- “When, however, two or more persons purchase property in their joint names or transfer property into their joint names and contribute the purchase money or property in equal shares, they hold the property as joint tenants with benefit of survivorship both in law and in equity, unless there is evidence of a contrary intention ” 36. That is an important consideration in this case because of the death of Mbega. But there is no evidence of a contribution of purchase money and property in equal shares. 37. The Appellant contributed money and he also contributed his development. On this point the situation is explained in the Law of Real Property by Megary and Wade, 4th Ed. P. 445:“ (d) Expenditure on another’s land When A spends his money on building or improvements on B’s land, with B’s agreement but with no intention of a gift or a loan, there will be a resulting or constructive trust for A proportional to his expenditure.” Hussey vs. Palmer, [1972] 1 WLR 1286. 38. Much was said at the trial of the virtue of Miruka Mbega in paying ofi the loan, and of the lack of payment by the Appellant. Comparison was made of shs. 14,122/- paid by Miruka Mbega and shs. 55/- paid by the Appellant, although the Appellant had gained “nearly shs. 100,000/-” in selling parts of the land, in contempt of the Court’s orders. It was the Respondent 39. Miruka Mbega who was fully in contempt. He had especially fiouted the High Court’s injunction order. In my opinion his sale cannot be condoned or considered. The appellant was not covered by the injunction. 40. It is dificult to apportion the shares. Even supposing that the Respondent’s contemptuous sale of 10 acres which raised the shs, 14,122/-, and which the Trustees ought not to have condoned after the https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 7

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injunction served on them in 1980, this may or may not be equivalent to the contributions of money or and development of the land of the Appellant. I take it that the case falls under the following heading:“ If they contribute the purchase money or property in equal shares, whether the property is purchased in the name of one or in their joint names, there is a tenancy in common between them in equity (Halsbury para. 1462 Vol. 38 Trusts).” 41. The equity may be rebutted. In this present case after the great delay of the Respondents in coming forward in 1975 and then a further seven years in counter-claiming for eviction after the case was brought, it would be unconscionable to throw the Appellant ofi the land, when Mbega did nothing on the land itself, although he may have made some payments. Consequently it is necessary for the Court to determine that the heirs of Mbega hold the land on a resulting trust for the Appellant and the heirs as tenants in common, it being implied that the Trustees had given consent to whatever transaction the Appellant and Mbega had finally agreed upon, after the Trustees had allowed the Appellant to live on and develop the land for some years, and accepted payments towards the loan from him. When the Trustees come to wind up the tenancy in common no doubt they will allot that portion of the land, when the Appellant has sold plots to third parties, to the Appellant plus the portion of the land he has lived on and they will allot that portion of the land to the Respondents which includes the land sold by Miruka. The balance of the land should take in any development of the Appellant in dividing the land between the parties. 42. I would therefore allow the appeal and substitute the following order:(1) A declaration will be granted to the Appellant that the 1st and 2nd Defendants and the Appellant hold the land on a resulting trust as tenants in common; in so far as the 1st and 2nd Defendants/ Respondents are registered with the Trustees, or otherwise, as heirs and in case the Trustees have transmitted and transferred land to the Respondents the latter hold the undivided portion of the Appellant as a tenant in common with the Respondents; (2) when the land comes to be divided it shall be divided as set out in this judgement; (3) the Respondents shall execute such necessary documents of transfer in favour of the Plaintifi as may be necessary; (4) the counter-claim will be dismissed; and (5) I would order that the Appellant should have the costs of the appeal and the costs of the suit in the High Court will be borne by each party. As Gachuhi JA agrees it is so ordered. Judgement Of Gachuhi 43. The facts of this case are set out in the Judgement of Platt JA. I need not repeat them unless where it is necessary. 44. This case has been complicated by the absence on any document which is capable of acceptance as evidence in law. Secondly, the death of Mbega Oeri. As we are dealing with a property of a deceased person, who cannot answer for himself, any evidence against him has to be carefully construed. 45. The main evidence in this case is that of the appellant. According to him, the deceased and the appellant met for the first time outside the Settlement Ofice when the deal of the alleged sale was entered. Partpayment for the sale is alleged to have been made. The agreement is alleged to have been written by a clerk in the Settlement Ofice. No evidence from the clerk. The deceased never pointed the land to https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 8

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the appellant. It is the appellant by himself who went to look for the plot but he does not say who authorised him to enter the plot. He claims to have maintained payment but receipts put in exhibit are of small amount. If there was agreement of sale as such, the settlement oficer ought to have known about it. 46. The question of the documents being lost in the fire, needed proof by the appellant. Since the parties did not come from the same area, the respondent had no way of challenging it. On my part the appellant ought to have produced further evidence of such proof possibly by oficial witnesses. 47. The matter had further been complicated by the Settlement Ofice for allowing the appellant to stay on the plot while knowing that the owner was dead. The appellant could not then be regarded as a trespasser but must have remained on the land with the full knowledge of the Settlement Fund Trustees. Sale by the alootee does not have to go through the land Board where there is a loan outstanding and the Settlement Fund Trustee remained a party as the chargee. Though there is no evidence of when possession was taken over by the purchaser. If there was actual sale in this instance, then the transfer document could have been prepared. That does not preclude the parties entering into an agreement of sale which in this case is a possibility. 48. The respondents’ case that one of them was in disability has not been challenged. The other whose whereabout at the time of death of the deceased is not disclosed. It is through this cloud of uncertainity that equity steps in. Though appellant has spent time and money for development of the land, he should not be evicted from it without consideration of such development. But he would have been in a better position had he repaid the loan before the respondents intervened in his enjoyment of the land. 49. The respondents have the right to claim the land as heirs while the appellant claim an interest in the land which could be of a purchaser in possession or on adverse possession. The trial judge held that none of these was available to the appellant. In my view, there was a possibility of an agreement of sale otherwise Settlement Fund Trustee could not have allowed the appellant to remain on the land. Such agreement could not be made void by lack of the land Board Consent as this did not apply. The only uncertainity in the agreement is to the extent of the share to be sold whether for the entire land or part of it. I would allow this appeal in part. I would order that: (1) As ordered by Platt JA. (2) The counter-claim is dismissed. (3) The land be divided equally between the parties taking into account portions sold by the parties. (4) The appellant shall pay the balance of any amount due to the Settlement Fund Trustee. (5) Each party shall bear its own cost of this appeal and of the High Court. Judgement Of Apaloo 50. I have had the privilege of reading in draft the full and enlightening judgement of Platt JA. Except in one important respect in which I feel obliged to difier, I am in respectful agreement with his main holdings. In particular, I think on the facts, we ought to hold that the contract alleged by the appellant was established and in this wise, dissent from the learned Judge’s contrary holding. https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 9

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51. What then are the facts? The appellant who appears to be a peasant farmer, was desirous of acquiring land in a settlement scheme. So in June 1966, he went to Isoge Settlement Ofice and learnt that one Mbega Oberi to whom plot No. 74 was allotted, was desirous of disposing of his interest. Mbega did not fancy the plot because it was bushy and swampy. So he wanted to convert his interest in the plot into cash. The appellant was desirous of buying the plot and so great was his desire to own a settlement scheme plot, that he agreed to buy it without seeing the land. The asking price was 2250/-. The appellant paid 1250/- on the spot and made up the balance the next day. 52. The appellant and his vendor Mbega who has since died, went to see an oficer of the settlement ofice and there informed him of the sale. It was then discovered that although the plot was allotted to Mbega the year before, he had not paid the prescribed allotment fee of 276/-. The appellant was asked to pay this and he did. According to his evidence, the oficer then told him the plot was his and he could build on it. The appellant then entered on the plot and has remained in possession of it ever since. He erected buildings on it, planted trees and crops on parts of it, erected a maize barn on a portion and buried no fewer than seven of his children on it. He even alienated portions of the land by way of sale to third parties. There is little doubt that the acts of ownership performed on the land by the appellant as related by him in his unchallenged evidence, were weighty and impressive. 53. Although he had been let into possession and paid the agreed purchase price to his vendor Mbega, the latter did not give him any document of transfer on the plot. The latter accordingly went to this vendor’s home for the “transfer”. Mbega was in ill-health and promised to give him a written document when he got better. He never did. He died in May 1969. No family or heirs of Mbega sought to question the appellant’s possession of the plot. So he remained on it undisturbed till 1976. Although the legal title in the plot remained vested in the settlement Fund Trustees, Mbega’s name remained in their books as the allotee of the plot. In 1976, the respondents who are his male children, commenced succession proceedings at the behest of S.F.T. to establish their right to succeed their late father. They came face to face with the appellant who asserted his title as the vendee of their father. He was still in possession. The result of the proceedings was that the respondents succeeded in establishing that they were the true heirs of Mbega. That did not settle the controversy between them because whereas the appellant claimed that he bought the land and was in possession in his right as owner, the respondents claimed he was merely a lessee. The evidence is rather niggardly on the normal terms of the contract between the S.F.T. and an allotee. In so far as the evidence sheds any light on it, it would seem that an allotee is never on allotment granted title to the land. He is granted possession and he agrees to pay a lump sum as consideration for being granted legal title. This sum he pays by instalments and when full payment is made, he is then given a conveyance. It seems therefore that if an allotee sells his interest before he completes payment, the vendee then steps into the allotee’s shoes and pays the unpaid balance in return for the legal title. 54. Although the evidence is far from clear, the learned Judge said the total purchase price of the suit plot was 20,000/-. The appellant will accordingly be expected to pay this sum to the S.F.T. if he was to obtain legal title. Although there is no real evidence of it, the late Mbega must have asked the appellant to pay by instalments the purchase price to the S.F.T. And the evidence is that he made a rather insignificant payment of this to them. The Judge found he made a total payment of 55/-. There is no real evidence what he contracted to pay and how long he was to pay these instalments. The fact that in September, 1977 when he brought this plaint, a fairly large amount was owed to the S.F.T. is, in my view, largely irrelevant to the issues fought in this case. It is clear the S.F.T. are aware of this case. Indeed an oficer employed by them, a Mr. Ambuso gave evidence at the instance of the respondents. The Trustees have not sought to join this suit to assert any claim to the unpaid balance. It seems to me therefore that the https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 10

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issues joined between the parties must be determined, regardless of any claims to the unpaid purchase price that may be outstanding against Mbega in their books. 55. The respondents succeeded in showing that they are the lawful heirs of Mbega and therefore stepped into his shoes vis-a-vis the suit land. In that capacity, the appellant sought against them, to quote the plaint: (a) A Declaration that the 1st and 2nd defendants are holding plot 74 Isoge Settlement Scheme as trustees for the plaintifi. (b) An order that the defendants execute the necessary documents in favour of the plaintifi. 56. If Omeri Mbega, the respondent’s father were alive in 1977, there can be little doubt that this suit would have lain against him. The rationale for seeking to stamp the late Mbega with the character of a trustee, is that having alienated his beneficial interest to the appellant in 1966 without giving him any instrument of transfer, he held whatever title he had in the plot as trustee for him. And this liability he transmitted to his heirs - namely the respondents. 57. The only factual issue fought between the parties was the nature of the contract by which the appellant was given exclusive possession of the suit plot. The appellant says, it was a sale, the respondents say, it was a lease. 58. On these two stories, the appellant gave, what seems, an eye-witness account of what happened between him and the late Mbega. He was let into possession after the oral sale. He remained in possession for nearly 3 years before Mbega’s death. He developed the land, built on it, buried his deceased children there, alienated portions of it to third parties, and in all respects, treated the land as his own. The respondents had no personal knowledge of these matters. Apparently, their father did not inform them of the alienation. Their case that it was a lease, was on their own showing, what the appellant allegedly told them. If it was a lease, some rent would become payable, or at least some periodical consideration for the lease. They did not suggest any such payment was made by the appellant or was ever demanded. 59. In my opinion, the appellant’s evidence of the nature of the transaction had the clearest imprint of truth and was supported by over tacts. I think very good reason must be given for its rejection. The learned Judge rejected the appellant’s evidence. He said: “I have considered the evidence so as it relates to the alleged agreement between the deceased and the plaintifi. I am satisfied there was no such agreement on a balance of probability.” 60. The learned Judge did not set out the probabilities and weighed the appellant’s story as against the respondents’. He criticized the document which the appellant produced as evidentiary of the agreement between himself and his late vendor. But the appellant testified that the original writing was destroyed by fire and what he produced was his recollection of it. It was not suggested that his evidence that the original document was burnt was a fabrication. But there is, in support of the truth of the appellant’s evidence, the solid and open acts of ownership - namely, undisturbed possession of the plot and the other acts I have related. 61. The learned Judge held that the appellant did not go on to the land pursuant to any agreement between himself and the late Mbega. That is a curious holding. Is it reasonable to think that the appellant had been on the land all this time in trespass? Even the respondents conceded that the appellant allegedly entered the land lawfully by reason of a lease. The appellant testified that when Mbega sold his interest in the plot to him, they went to the Settlement Ofice and obtained the approval of the Settlement Oficer. The latter said he could go unto the land after payment of the allotment fee. Mr. Ambuso an oficer of Isoge Settlement Scheme who testified at the respondent’s behest, said “it is possible for https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 11

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an allotee to transfer a plot allotted to him to a third party with the consent of the Settlement Fund Trustees.” He conceded that “in fact a lot of transfers have occurred.” 62. What the appellant said occurred between himself and Mbega in 1966, is what Ambuso testifying in 1985 said was of frequent occurrence. 63. Although the appellant did not pay a substantial part of the loan or purchase price to the S.F.T., the little he paid was receipted in his name. This suggests to me that the S.F.T. or their representatives were aware of the transaction between the appellant and Mbega and acquiesced in it. The evidence is heavily weighted in favour of there being an agreement in terms related by the appellant with the concurrence of the S.F.T. Accordingly, like Platt JA, I must dissent from the Judge’s contrary conclusion. The learned Judge also thought even if there was such an agreement, it was avoided by absence of Land Control Board consent. On this, my Lord Platt has researched into the law. His researches enabled him to conclude that in the circumstances of this case, no Land Control Board consent was necessary. I am impressed by his analysis and examination of the relevant law. I would concur in that conclusion without hesitation. 64. The upshot of it, is that I must accept that the late Mbega entered into a contract with the appellant to dispose by way of sale, his beneficial interest in the suit plot to the appellant. The appellant paid him the monetary consideration he asked for it. Thereafter, with the approval of the S.F.T., the appellant entered into possession of the land, developed it and exercised on it acts of ownership without let or hindrance for three years before Mbega’s death and upwards of six years after his death. Presumably, at the request of Mbega, the appellant made five payments of small amounts to the S.F.T. in respect of the purchase price of the plot. The contract between the appellant and the Mbega was not invalidated by absence of Land control Board requirement. The respondents in disobedience to an order of injunction, sold a portion of the suit land and utilized part of the proceeds in part liquidation of the purchase price owed to the S.F.T. 65. On these facts, I ask myself: is the appellant entitled to the reliefs which he sought? Is he entitled to have it declared that the respondents hold plot 74 Isoge Settlement as trustees for him and if so, are they liable to execute any necessary documents in the appellant’s favour? It is the legal remedy that is properly available to the appellant on these facts, that I find myself in respectful disagreement with my Lord Platt. Before I articulate the reasons for my dissent, it is necessary to look at one further finding of the learned Judge and how that finding impinges on the legal relief that can properly be awarded to the appellant. The Judge held: “ In the result, I hold that the plaintifi did not make such a contribution towards the payment of the plot as to justify my holding that a resulting trust enures in his favour.” 66. With respect, I venture to question whether the equitable principle of resulting trust properly applies to this case. If I analyse this case aright, there being a binding contract for the sale of an interest in land between the appellant as purchaser and Mbega as vendor, the latter held the legal title or whatever interest he had in the land as trustee for the appellant purchaser. That that is the resultant legal position, is, I think, well settled. In Lysat v Edwards (1976) 2 Ch D 499 at 506, Jessel MR stated the law as follows: “ The moment you have a valid contract for sale, the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money and a right to retain possession of the estate until the purchase money is paid in the absence of express contract as to the time of delivering possession.” https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 12

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67. On the facts of this particular case, the consideration for the contract as between Mbega and the appellant was the sum of 2250/-. That was paid and Mbega relinquished possession to the appellant. Mbega transferred or should be deemed to transfer to the appellant, his legal right to the title upon payment of the purchase loan owed to the S.F.T. It would therefore follow that upon tendering the outstanding loan to the S.F.T., the appellant was entitled to have the legal title in the suit plot transferred to himself. The S.F.T., as has been shown, was fully cognisant of the contract between Mbega and the appellant and indeed acquiesced in it. If while the appellant still retained possession, Mbega went back on this agreement, the appellant can, by a suit in equity, hold, him to his bargain. Does the fact that Mbega is dead afiect the legal position? I think not. At Page 93 paragraph 212 of Fry on Specific Performance 6th Edition the law is stated as follows:“ If the vendor of real estate dies before completion, the contract may be enforced either by the purchaser or by the personal representative or representative of the vendor; but in both cases the heir or devisees must be a party, as having an interest in disputing the contract, and it makes no difierence that the legal estate is outstanding in a trustee.” 68. As applied to this case, it means, that the suit for specific performance of the contract can properly be enforced against the respondents who are undisputably Mbega’s heirs and it does not matter that the legal estate remains vested in the Settlement Fund Trustees. It would, perhaps have been desirable to join the S.F.T. to this suit, but this is strictly unnecessary because jurisdiction to grant specific performance exists only against the contracting parties or their successors-in-title. As the learned Authors of Fry on Specific Performance put it, “ The jurisdiction in specific performance is against the person of the defendant on the equity arising from the contract.” 69. It seems to me that on the facts of this case, the S.F.T. are in the position of stakeholders as between the parties. If as I think, the appellant succeeds in the declaration and order he seeks, he is entitled, upon payment of the outstanding loan, to have the legal title to the suit plot conveyed to himself. As I said, there is not a great deal of evidence as to the incidents of the allotment contract between the S.F.T. and Mbega. In particular, there is no evidence that Mbega charged the suit plot to the S.F.T. to secure the repayment of the purchase loan. If he did not and as the principal and interest due to the S.F.T. have been outstanding for more than 6 months, section 174(3) of The Agriculture Act (Cap 318) confers a discretionary power on the S.F.T., without recourse to a Court to terminate Mbega’s interest and revest that interest in itself. Or if the loan was secured by a charge on the land, the S.F.T. may, under section 33 of The Agricultural Finance Corporation Act, make a written demand for payment of the outstanding loan and if default was made in repayment, either re-enter the land and by themselves stand possessed of it or sell it by public auction to recover the loan. 70. It is plain the S.F.T. did not take either of those courses. They were apparently prepared to allow the respondents to step into their father’s shoes. Ambuso, the Settlement Scheme Oficer testified that: “ Miruka Mbega (is the 1st respondent) signed all the charge documents on behalf of his late father as trustee had he agreed to take over all the current liabilities on the plot and to make payments thereof within 6 months.” 71. That indulgence must have been extended to the 1st respondent on the assumption that the date of his death, Mbega still had some beneficial interest in the suit plot. If my appreciation of the facts is correct, Mbega died bereft of any interest in the plot. If he remained in the books of the S.F.T. as the https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 13

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beneficial owner of the suit plot, he can only have held it as trustee for the appellant. In entering into the arrangement with the S.F.T. the 1st respondent, like his father before him, could only have done so as trustee for the appellant. I would think that as against the respondents, the appellant was entitled to relief and order sought in the plaint. That being the view of the matter that commends itself to me, I cannot go along with any suggestion that the suit plot should be partitioned between the parties. The contract which I have found to have been entered into between Mbega and the appellant, was in respect of the whole plot, described as Isoge No. 74 containing in area 47 acres. And if the appellant established his right to specific performance, it cannot be granted to part of the plot. On this question, the statement of principle is: “ The Court will not, as a general rule, compel specific performance of a contract, unless it can execute the whole contract;” or as Lord Romily MR expressed it: “ This Court cannot specifically perform the contract piecemeal, but it must be“performed at all.” (See Fry on Specific Performance 6th Edn. p 383 paragraph 821). 72. Unless my appreciation of the facts is faulty, I cannot accept that they ground any conclusion of a joint purchase or the expenditure or improvement on another’s land as to attract the equitable presumption of either a joint tenancy or tenancy in common of the plot in dispute. One has to bear in mind that the policy justification of the resulting trust, is that having jointly contributed money or skill in acquiring property, justice and fair dealing requires that such venture, should be refiected in its beneficial enjoyment. In the case of resulting trusts, it is based on what Equity considers would be the true intention of the parties or in the case of constructive trusts, it is imposed as a matter of justice and fairplay where the Court thinks it would be unjust and ofiend good conscience for the legal owner to keep the property only for himself. 73. That being the underlying philosophy on which these two equitable doctrines were built, the cases of Omoke v Omoke and Hussey v Palmer [1972] 1 WLR 1286 are easily distinguished. In the former case, two brothers were found to have contributed money in equal shares with which a settlement scheme plot was acquired in the name of one of them. It was held that they held the plot as tenants in common. In Palmer’s case, an elderly widow contributed money in making extension to the respondents’ property. Such payment was not intended to be a gift nor was there any arrangement for its repayment. It was said it was against conscience for the defendant to retain the benefit without repayment. So the Court held that the defendant held the property on a constructive trust for the plaintifi proportionate to her payment. 74. In this case, the legal owner of the property is the S.F.T. That body is owed money which both parties paid in unequal shares. One must look at the motive with which either party paid the debt to S.F.T. The appellant was the equitable owner of the property and was in possession. He paid part of the sums which he properly owed to the trustees. His object was to discharge his obligation to them and thus entitle himself to the conveyance of the legal title. On a proper legal analysis of position, the respondents had neither the equitable nor the legal title. They went behind the appellant and paid a substantial portion of the debt for the purpose of putting themselves up as owners and thereby obtaining a conveyance of the legal title. They ought not to be allowed to benefit by this manouvre. 75. Even the way in which they raised the money, is one that equity would roundly condemn. The Court below exercising the jurisdiction of a Court of equity, granted an injunction restraining the respondents from dealing with the land. This order was made in 1979. Yet with full knowledge of it and in disobedience of it, they sold a large portion of the land in 1984 and on their own showing, https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 14

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withheld the fact of the injunction from their purchaser. Having realized 160,000/- from the sale, they paid 14,122/- out of it to the S.F.T. what possible equity can arise in their favour by this payment? 76. As at all events, as on my appreciation of the legal position, neither the legal nor the beneficial ownership of the suit plot is vested in the respondents, I cannot see how they can be said to hold an undetermined portion of it in trust for the party, who has not only the equitable title, but is entitled to have the legal as well. In my opinion, the legal title is vested in the S.F.T. who are obliged to convey it to the appellant on payment or tender by him of the outstanding balance of the loan. I think, the respondents are entitled to recover from the S.F.T. the 14,122/- they voluntarily paid. The appellant, for his part, ought not to be allowed to benefit by that payment. 77. I do not need to go into any further details. I believe I have said enough to indicate the process of reasoning which leads me to the firm conclusion that the appellant succeeds in this appeal and is entitled to the relief and order which he sought on the plaint. Not finding any legal basis for it, I find myself unable to subscribe to any order which carves out to the appellant an undetermined and undeterminable portion of the suit plot. 78. The conclusion to which I have come, is based on the appreciation of the doctrines of equity to the facts, as judged by my own lights. Section 3 of the Judicature Act, directs that the Courts in actions involving Africans, should be guided by African customary law. This suit, was, however pleaded and fought on the received principles of “English Equity” and was determined or purportedly determined on those principles. 79. It was not suggested to us that any principle of African customary law would, on these facts, reach a difierent result, or a result more in consonance with real justice and certainly, no Kenya case law was brought to our attention which would mandate the partition of the suit plot in the manner proposed by my Lord Platt. “ Customary law has been held in a Commonwealth jurisdiction with which I am familiar, to consist “generally in doing the reasonable in the special circumstances of the case.” 80. I cannot accept that when a man sells his landed property to another and relinquishes possession to him, it would be doing the reasonable for either the vendor or his heirs to go behind the back of the purchaser and sell a portion of the self-same land to another and thereafter seek to recover either the whole land or a portion from him or seek to go into shares with the purchaser in possession. That, was, in part, the basis of the respondents’ claim because the 1st respondent was pressed in cross-examination to say:- “If my father had sold the land, I would still get it back.” 81. This was not clan or family land and I would venture to suggest that such a position would not only be plainly unreasonable, but would ofiend against customary notions of justice. 82. Accordingly, like Platt JA I would allow the appeal and set aside the decision appealed from but I am unable to concur with the order of partition which my Lord has proposed. In lieu of the judgement and order of the Court below, I would grant the appellant a declaration in terms sought in the plaint with costs here and below. 83. I have since committing my views into writing read the decisive judgement of Gachuhi JA and the reasons which he gave for ordering that “the land be divided equally between the parties” that is, between the purchaser and the vendor’s heirs. On the legal validity of those reasons, I express no opinion. DATE AND DELIVER IN KISUMU THIS 11TH DAY OF MAY, 1988 https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 15

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H.G. PLATT JUDGE OF APPEAL ................................. J.M. GACHUHI JUDGE OF APPEAL ................................. F.K. APALOO JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/1988/91/eng@1988-05-11 16

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