REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC APPEAL NO. E002 OF 2025
JACKSON MUTUA KAMUYA (Suing as the Administrator of the Estate of KAMUYA KAVINGO).....................................................................APPELLANT
-VERSUS-
NZIMBII MUINDE........... …………………………………........RESPONDENT
(Being an appeal from the judgment of Hon. F. Makoyo Principal Magistrate delivered on 21 st January, 2025 in Kilungu MCELC 48 of 2018)
JUDGMENT
1. The Appellant is the administrator of the Estate of his late father Kamuyu Kavingo (deceased) who died on 29 th April, 2021. The deceased with 3 others had filed a suit against the Respondent and two others on 23 rd October, 2018. After the death of the deceased, the Appellant took over the suit and vide an amended plaint dated 10 th July, 2023, he sought the following reliefs against the Respondent;
a. An order of a permanent injunction restraining the Defendants their servants and/or agents from entering, trespassing and interfering with the suit premises.
b. Recovery and mesne profits of land.
c. General damages for trespass.
d. Costs of this suit
e. Interest on (a) and (b) above at court rates.
f. A declaration that the deceased Kamuya Kavingo is a bonfide purchaser for value of 36 meters of land out of land parcel number Mbitini/Mutyambua/8 since 5 th July, 1984.
g. A declaration that the Defendant holds 36 meters of land out of land parcel number Mbitini/Mutyambua/8 occupied by John Mutua Kilungu in trust of the estate of Kamuya Kavingo.
h. An order compelling the Defendant to transfer 36 meters of land out of land parcel number Mbitini/Mutyambua/8 to the estate Kamuya Kavingo.
2. The deceased had entered into a sale agreement with the Respondent on 5 th July, 1984 in which the Respondent sold to the deceased land measuring 36 metres. The deceased then gifted the land to his son in law John Mutua Kilungu who utilized it until 2014 when the Respondent and her sons violently stopped him from farming on it. This is what prompted the deceased to file the present suit against the Respondent.
3. After a full hearing, the trial magistrate dismissed the Appellant’s suit. This is what prompted the Appellant to file an appeal to this court in which he raised the following grounds:
1) That the learned trial magistrate erred in law and fact in rewriting the sale agreement dated 5 th July, 1984 on behalf of the parties.
2) That the learned trial magistrate erred in law and fact in wrongly interpreting the provisions of Section 3(3) of the Law of Contract Act.
3) That the learned trial magistrate erred in law and fact striking out the Appellant’s suit on account of lack of con\sent from the Land Control Board under Section 6 and 7 of the Land Control Act, Cap 302 Laws of Kenya.
4) That the learned trial magistrate erred in law and fact in failing to note that the Appellant had been in occupation of the disputed parcel of land for over 30 years thus creating a constructive trust over the said parcel of land.
5) That the learned trial magistrate erred in law and fact in holding that the parcel of land measuring 36 steps could not be identified yet the appellant had been in occupation of the said 36 metres of the disputed parcel of land.
4. The Appellant’s contention during the hearing is that the deceased purchased the land measuring 36 meters from the Respondent. The deceased then gifted the land to his son in law who cultivated on it until 2014 when the Respondent and her sons stopped him from cultivating on it.
5. The Respondent’s contention during the hearing is that she had leased the land to the deceased for 7 years at the rate of Kshs.500/= per year. The lease was verbal. When the lease expired, she asked the Appellant’s family to stop using the land. She denied ever signing any agreement with the deceased.
6. The parties were directed to file written submissions. The directions on filing of submissions were given on 25 th February 2026. The Appellant was granted 14 days to file and serve submissions. The Respondent was to file her submissions within 14 days of being served. The Appellant filed submissions dated 23 rd March, 2026. On 24 th April, 2026 when the matter came up for mention to confirm filing of submissions, the Respondent had not filed her submissions. Her counsel sought extension of 14 days to file submissions. As at 10 th August, 2026 when writing this judgment, the Respondent had not filed submissions.
7. I have gone through the proceedings before the trial court, the judgment, the submission by the Appellant as well as the grounds of appeal. My duty as a first appellate court is to re-evaluate the evidence tendered before the trial court and reach my own conclusions but of course taking into account the fact that I did not see the witnesses testify.
8. The duty of a first appellate court was aptly put in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows:
“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.
9. The trial magistrate made a finding that the Appellant was not present when the deceased and Respondent entered into the agreement of 5 th July, 1984 and that the Appellant was seeking to rely on an agreement which did not meet the threshold set out under Section 3(3) of the Law of Contract Act and that in any case there was no compliance with Section 6 and 7 of the Land Control Act Cap 302. The trial magistrate went on to make a finding that the mere fact that there was possession could not grant the Appellant any cause of action or rights of proprietorship arising from the impugned sale agreement.
10. The Appellant submitted that the trial magistrate erred in re-writing a contract between the deceased and the Respondent. Reliance was placed on the case of South Nyanza Sugar Co. Ltd –vs- Leonard O. Arera (2020) eKLR where it was held as follows:
It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of courts to rewrite such contracts. In National Bank of Kenya Ltd –vs- Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows:-
A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and prove.
In Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that:
We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.
11. The Appellant also submitted that the trial magistrate misinterpreted the provisions of Section 3(3) of the Law of Contract Act. Reliance was placed on the case of Williams & Kennedy Limited & 3 Others –vs- Gicheru & 10 Others (Civil Appeal E682, E686 and E705 of 2024 (Consolidated) (2026) KEC 130 (KLR) where it was held as follows:
“Be that as it may, when the issue of the suit’s competence in light of Section 3(3) of the Law of Contract At was raised, the answer provided by the 1 st Respondent, and which the learned judge ultimately accepted and upheld, was that the strictures contained in the provision came into force only on 1 st June, 2003 and could not operate retrospectively to implicate and invalidate the transaction between the 1 st Respondent and Zena that occurred in the year 2000. That position is patently correct as this court has held in a number of decisions that the mandatory requirement for contract for sale of land be in writing became operative from the year 2003”.
12. The Appellant also submitted that the trial magistrate was wrong in holding that there was no consent of the Land Control Board which was obtained. Reliance was placed on the case of Aliaza –vs- Saul (Civil Appeal) 134 of 2017 (2022) KECA.
13. It was further submitted that the magistrate erred in failing to find that as the deceased’s nominee had been put in possession and was in possession for over 30 years the concept of constructive trust had been created. The Appellant relied on the case of Nungi –vs- Mwaura (Being sued in her capacity as the administrator of the Estate of Mwaura Njuguna (2024) KEELC 3822 (KLR).
14. Finally the Appellant submitted that the trial magistrate was wrong in holding that the land being sold was not properly described in the agreement and as such could not be identified. The Appellant relied on the case of Caroline Awinja Ochieng & Another –vs- Jane Anne Mbithe Gitau & Another ELC 694 of 2012 eKLR.
15. I have carefully considered the proceedings before the lower court, the memorandum of appeal as well as the Appellant’s submissions. The issues which stand out for determination are firstly, whether there was an enforceable agreement between the deceased and the Appellant. Secondly, whether it was mandatory to get the consent of the Land Control Board. Thirdly, whether the concept of constructive trust is applicable in the circumstances of this case. Fourthly, whether the land which was purchased was definable. Fifthly, was the Appellant entitled to the reliefs in this claim before the lower court.
Whether there was an enforceable agreement between the deceased and the Appellant
16. An agreement between the deceased and the Appellant was produced in evidence by the Appellant. It is clear from the judgment of the trial magistrate that he was of the view that the agreement did not meet the threshold under Section 3(3) of the Law of Contract Act which states as follows:
No suit shall be brought upon a contract for the disposition of an interest in land unless—
a. The contract upon which the suit is founded—
i. is in writing;
ii. is signed by all the parties thereto; and
b. the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:
Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.
17. The aforesaid Section was an amendment to the law of Contract Act which came into force on 1 st June, 2003. The agreement in issue was entered into on 5 th July, 1984. The amended version could not therefore apply retrospectively. The trial magistrate was therefore wrong in applying provisions of a statute whose Sections were not applicable as at the time the contract was entered into.
18. Prior to the amendment of 2003, subsection 3 read as follows:
“No suit shall be brought upon a contract for 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 changed or by some person authorized by him to sign it....”.
19. The Court of Appeal in the case of Williams & Kennedy Limited & 3 Others (Supra) dealt at length on the difference between Subsection (3) which existed before 1 st June, 2003 and the one which is now in force and which took effect on 1 st June, 2003. The court stated as follows:
“The difference between this provision and the subsequent amendment in that beyond the need for the agreement to be in writing, there was the option of a memorandum or note of the same, so long as such memorandum or note was “signed by the person to be charged” or by a person authorized by him to sign it. It did not have to be signed by that person himself, as an agent of his could sign it. An acknowledgment of the existence of an agreement could, therefore, suffice and both parties did not have to have signed it. More importantly, there was no requirement for attestation of each signature of the parties by a witness who was present. In short, the path to proof of the existence of and for enforcement of an agreement was much broader and easier to navigate.
But that was not all the subsection before amendment also had to proviso that flung the door of jural enforcement of such an agreement even wider:
“Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to 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
2. Being already in possession; continues in possession in part performance of the contract and has done some other at in furtherance of the contact”.
20. The evidence which was adduced before the trial court is that though the Appellant did not know how to read and write, PW2 Francis Muteti King’ola who wrote the agreement stated that the Appellant held his hand while writing the agreement to signify that she was bound by the terms of the agreement according to the Kamba traditions. This evidence was not dislodged. Further evidence adduced is that the Appellant’s son Matheka Muinde was present. This son was literate and he signed the agreement and received part of the purchase price.
21. The deceased’s nominee was put in possession and remained in possession for over 30 years until the Appellant stopped him from cultivating on the land. This is what prompted the deceased to file a suit against the Appellant in 2018. If what the Appellant wants the court to believe was a lease, then the Appellant should have stopped the deceased’s nominee in or around 1991 after the expiry of the 7 years lease which she alleges to have been the case. The Appellant should not have waited for 27 more years after the expiry of the alleged lease to lay claim to the land.
22. The agreement of 5 th July, 1984 met the requirements of Section 3(3) of the then Law of Contract Act which existed before the amendment. The Appellant’s son Matheka Muinde who was literate signed and was aware of the agreement as he even received some money which was part of the sale agreement. The agreement was therefore enforceable and the trial magistrate was wrong in applying the provisions of Section 3(3) of the Law of Contract which came into force on 1 st June, 2003 to discredit the agreement.
23. It is clear from the judgment of the trial magistrate that one of the reasons for dismissing the Appellant’s suit is that there was no consent of the Land Control Board which had been obtained. There was no one who raised the issue of non-grant of the consent of the Land Control Board. Even if this would have been raised, this alone would have not been used to defeat the Appellant’s suit. It would have been unconscionable for any of the parties to have raised it after several decades.
24. In the case of Aliaza (Supra) the Court of Appeal stated as follows:
“Under the new Constitutional dispensation and in light of the provisions of Section 7 of the sixth schedule to the Constitution, the Land Control Act must be read in a manner that does not give succor to a party, such as the respondent, who wishes to renege on his contractual obligations in order to steal a match on the purchaser”.
25. The case of Willy Kimutai Kitilit –vs- Michael Kibet (2018) which dealt with the issue of failure to obtain consent of the Land Control Board was brought to the attention of the trial magistrate but he ignored it. The decision was binding on the trial magistrate but he chose to ignore it and went ahead to hold that the transaction did not get the consent of the Land Control Board. The Court of Appeal judges in this case held as follows:
“As we have held in essence that, the lack of the consent of the Land Control Board does not preclude the court of giving effect to the equitable principles, in particular the doctrine of constructive trust, we find that the trial court reached the correct decision and therefore the appeal has no merit”.
26. The trial magistrate was plainly wrong in ignoring binding decisions of superior courts and finding that consent of the Land Control Board was necessary.
Whether the Concept of constructive trust is applicable in the circumstances of this case
27. The evidence which was adduced before the trial court is that the agreement was entered into between the deceased and the Respondent on 5 th July, 1984. The deceased gifted the land to his son in law who took possession and started cultivating it. He cultivated it until 2014 when he was stopped. As at the time the Respondent stopped the deceased’s son in law from cultivating, he had been on the property for 30 years. The Respondent had been paid all the monies agreed in the sale agreement. The Respondent could not wake up after 30 years and claim that what she entered into with the deceased was a lease not a sale.
28. A constructive trust had been created in favour of the deceased over the land. This is what the Court of Appeal Judges held in the cases of Aliaza and Willy Kimutai Kitilit (Supra). The Respondent was trying to renege on the agreement by calling it a lease. I therefore find that the doctrine of constructive trust is applicable in the circumstances of this case.
29. One of the reasons for dismissing the Appellant’s suit is that there was no description of the dimensions of the land being purchased. The trial magistrate stated as follows:
“I note that this agreement makes no reference to the land being transacted upon or its dimensions”.
30. The sale agreement was written in Kamba language and the same was translated into English. The Appellant produced the agreement in Kamba as well as the translated version. The agreement stated that the land being sold was 36 metres. PW2 Francis Muteti King’ola is the one who wrote the agreement. It is not clear why his name in the proceedings is given as Francis Nzimbi Kinyola yet his statement dated 20 th October, 2018 which the trial magistrate adopted gives his names as Francis Muteti King’ola. Be that as it may, the two names appear to be referring to the same person who wrote the agreement and recorded a statement and proceeded to testify in court.
31. The witness testified as follows:
“The 36 metres in the agreement was the width of the land. There was a road on the other side. Since Kamunya Kavingo farmed on the land until 2014. I am a neighbor. That is all.”
32. The evidence which was adduced before the trial court clearly shows that the land which was being sold was definable. It was 36 metres in width and the length terminated at a road which was on the other side. The deceased’s son in-law was put in possession and cultivated the land until 2014 when he was stopped by the Appellant. The trial magistrate was therefore wrong in finding that the dimensions of the land were not defined.
33. The trial magistrate was equally wrong when he made a finding that the agreement did not make any reference to the land being transacted upon. The land from where the deceased purchased the 36 metres had not been adjudicated. Adjudication was only done much later and title came out in the name of the Appellant and her co-wife Mbula Munayalo on 20 th February, 2007. There is no way the land would have been described as Mbitini/Mutyambua/8 in 1984 before the adjudication process had been done.
34. The sale agreement described the Appellant as the seller and the evidence adduced did not show that there was any other parcel owned by the Respondent and her co-wife other than the one which was being sold in 984.
Whether the Applicant was entitled to the reliefs in his claim before the lower court
35. From the analysis hereinabove, it is clear that the Appellant was unlawfully removed from the suit property in or around mid August, 2014. It is also clear that the deceased purchased the suit property on 5 th July, 1984. It is also clear that a constructive trust had been created over the suit property in favour of the deceased and that there is need for the purchased property to be transferred to the estate of the deceased. It is also clear that the Respondent trespassed on to the deceased’s land in mid August, 2014. Trespass to land is actionable per se.
36. There was a prayer for mesne profits. The trial magistrate found that there was no evidence placed before him as to award any mesne profits. On this the trial magistrate was correct but in view of his earlier findings on the basis of the sale, there was no need of addressing the issue of mesne profits. Mesne profits are in the nature of special damages which have to be pleaded and proved. This was not done. On the issue of trespass, I note from the evidence that the suit property is about ¾ of an acre. The Appellant has been kept out of this land for over twelve (12) years. Doing the best I can and given the rural nature of the location of the land, I will assess nominal damages in the sum of Kshs.50,000/=.
Disposition
37. I have said enough to demonstrate that the trial magistrate was wrong in dismissing the Appellant’s suit. I allow the appeal, set aside the judgment delivered on 21 st January, 2025 and in place thereof enter judgment for the Appellant in the lower court as follows:
a. A declaration that the deceased Kamuya Kavingo was a bonafide purchaser for value of 36 metres of land out of land parcel number Mbitini/Mutyambua/8 since 5 th July, 1984.
b. A declaration that the Defendant holds 36 metres of land out of land parcel number Mbitini/Mutyambua/8 in trust for the estate of Kamuya Kavingo.
c. An order compelling the Defendant to transfer 36 metres of lnd out of Land Parcel No. Mbitini/Mutyambua/8 to the Estate of Kamuya Kavingo within 60 days failing which the Deputy Registrar of this court to sign all the necessary documents to ensure that land measuring 36 metres is excised out of Mbitini/Mutyambua/8 and registered in the Estate of Kamuya Kavingo.
d. An order of permanent injunction is issued restraining the Defendant, her servants and or agents from interfering, trespassing and or interfering with a portion measuring 36 metres within LR No. Mbitini/Mutyambua/8.
e. General damages for trespass in the sum of Kshs.50,000/=.
f. Costs of the suit and the appeal.
................................................
HON. E. O. OBAGA, FCIArb
JUDGE
RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2026.
IN THE PRESENCE OF:
Mr. Amutala for Appellant
Court assistants – Kilonzo & Musyoki
ELC APPEAL NO. E002 OF 2025 14 | Page
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC APPEAL NO. E002 OF 2025
JACKSON MUTUA KAMUYA (Suing as the Administrator of the Estate of KAMUYA KAVINGO).....................................................................APPELLANT
-VERSUS-
NZIMBII MUINDE........... …………………………………........RESPONDENT
(Being an appeal from the judgment of Hon. F. Makoyo Principal Magistrate delivered on 21 st January, 2025 in Kilungu MCELC 48 of 2018)
JUDGMENT
1. The Appellant is the administrator of the Estate of his late father Kamuyu Kavingo (deceased) who died on 29 th April, 2021. The deceased with 3 others had filed a suit against the Respondent and two others on 23 rd October, 2018. After the death of the deceased, the Appellant took over the suit and vide an amended plaint dated 10 th July, 2023, he sought the following reliefs against the Respondent;
a. An order of a permanent injunction restraining the Defendants their servants and/or agents from entering, trespassing and interfering with the suit premises.
b. Recovery and mesne profits of land.
c. General damages for trespass.
d. Costs of this suit
e. Interest on (a) and (b) above at court rates.
f. A declaration that the deceased Kamuya Kavingo is a bonfide purchaser for value of 36 meters of land out of land parcel number Mbitini/Mutyambua/8 since 5 th July, 1984.
g. A declaration that the Defendant holds 36 meters of land out of land parcel number Mbitini/Mutyambua/8 occupied by John Mutua Kilungu in trust of the estate of Kamuya Kavingo.
h. An order compelling the Defendant to transfer 36 meters of land out of land parcel number Mbitini/Mutyambua/8 to the estate Kamuya Kavingo.
2. The deceased had entered into a sale agreement with the Respondent on 5 th July, 1984 in which the Respondent sold to the deceased land measuring 36 metres. The deceased then gifted the land to his son in law John Mutua Kilungu who utilized it until 2014 when the Respondent and her sons violently stopped him from farming on it. This is what prompted the deceased to file the present suit against the Respondent.
3. After a full hearing, the trial magistrate dismissed the Appellant’s suit. This is what prompted the Appellant to file an appeal to this court in which he raised the following grounds:
1) That the learned trial magistrate erred in law and fact in rewriting the sale agreement dated 5 th July, 1984 on behalf of the parties.
2) That the learned trial magistrate erred in law and fact in wrongly interpreting the provisions of Section 3(3) of the Law of Contract Act.
3) That the learned trial magistrate erred in law and fact striking out the Appellant’s suit on account of lack of con\sent from the Land Control Board under Section 6 and 7 of the Land Control Act, Cap 302 Laws of Kenya.
4) That the learned trial magistrate erred in law and fact in failing to note that the Appellant had been in occupation of the disputed parcel of land for over 30 years thus creating a constructive trust over the said parcel of land.
5) That the learned trial magistrate erred in law and fact in holding that the parcel of land measuring 36 steps could not be identified yet the appellant had been in occupation of the said 36 metres of the disputed parcel of land.
4. The Appellant’s contention during the hearing is that the deceased purchased the land measuring 36 meters from the Respondent. The deceased then gifted the land to his son in law who cultivated on it until 2014 when the Respondent and her sons stopped him from cultivating on it.
5. The Respondent’s contention during the hearing is that she had leased the land to the deceased for 7 years at the rate of Kshs.500/= per year. The lease was verbal. When the lease expired, she asked the Appellant’s family to stop using the land. She denied ever signing any agreement with the deceased.
6. The parties were directed to file written submissions. The directions on filing of submissions were given on 25 th February 2026. The Appellant was granted 14 days to file and serve submissions. The Respondent was to file her submissions within 14 days of being served. The Appellant filed submissions dated 23 rd March, 2026. On 24 th April, 2026 when the matter came up for mention to confirm filing of submissions, the Respondent had not filed her submissions. Her counsel sought extension of 14 days to file submissions. As at 10 th August, 2026 when writing this judgment, the Respondent had not filed submissions.
7. I have gone through the proceedings before the trial court, the judgment, the submission by the Appellant as well as the grounds of appeal. My duty as a first appellate court is to re-evaluate the evidence tendered before the trial court and reach my own conclusions but of course taking into account the fact that I did not see the witnesses testify.
8. The duty of a first appellate court was aptly put in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows:
“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.
9. The trial magistrate made a finding that the Appellant was not present when the deceased and Respondent entered into the agreement of 5 th July, 1984 and that the Appellant was seeking to rely on an agreement which did not meet the threshold set out under Section 3(3) of the Law of Contract Act and that in any case there was no compliance with Section 6 and 7 of the Land Control Act Cap 302. The trial magistrate went on to make a finding that the mere fact that there was possession could not grant the Appellant any cause of action or rights of proprietorship arising from the impugned sale agreement.
10. The Appellant submitted that the trial magistrate erred in re-writing a contract between the deceased and the Respondent. Reliance was placed on the case of South Nyanza Sugar Co. Ltd –vs- Leonard O. Arera (2020) eKLR where it was held as follows:
It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of courts to rewrite such contracts. In National Bank of Kenya Ltd –vs- Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows:-
A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and prove.
In Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that:
We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties, they are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.
11. The Appellant also submitted that the trial magistrate misinterpreted the provisions of Section 3(3) of the Law of Contract Act. Reliance was placed on the case of Williams & Kennedy Limited & 3 Others –vs- Gicheru & 10 Others (Civil Appeal E682, E686 and E705 of 2024 (Consolidated) (2026) KEC 130 (KLR) where it was held as follows:
“Be that as it may, when the issue of the suit’s competence in light of Section 3(3) of the Law of Contract At was raised, the answer provided by the 1 st Respondent, and which the learned judge ultimately accepted and upheld, was that the strictures contained in the provision came into force only on 1 st June, 2003 and could not operate retrospectively to implicate and invalidate the transaction between the 1 st Respondent and Zena that occurred in the year 2000. That position is patently correct as this court has held in a number of decisions that the mandatory requirement for contract for sale of land be in writing became operative from the year 2003”.
12. The Appellant also submitted that the trial magistrate was wrong in holding that there was no consent of the Land Control Board which was obtained. Reliance was placed on the case of Aliaza –vs- Saul (Civil Appeal) 134 of 2017 (2022) KECA.
13. It was further submitted that the magistrate erred in failing to find that as the deceased’s nominee had been put in possession and was in possession for over 30 years the concept of constructive trust had been created. The Appellant relied on the case of Nungi –vs- Mwaura (Being sued in her capacity as the administrator of the Estate of Mwaura Njuguna (2024) KEELC 3822 (KLR).
14. Finally the Appellant submitted that the trial magistrate was wrong in holding that the land being sold was not properly described in the agreement and as such could not be identified. The Appellant relied on the case of Caroline Awinja Ochieng & Another –vs- Jane Anne Mbithe Gitau & Another ELC 694 of 2012 eKLR.
15. I have carefully considered the proceedings before the lower court, the memorandum of appeal as well as the Appellant’s submissions. The issues which stand out for determination are firstly, whether there was an enforceable agreement between the deceased and the Appellant. Secondly, whether it was mandatory to get the consent of the Land Control Board. Thirdly, whether the concept of constructive trust is applicable in the circumstances of this case. Fourthly, whether the land which was purchased was definable. Fifthly, was the Appellant entitled to the reliefs in this claim before the lower court.
Whether there was an enforceable agreement between the deceased and the Appellant
16. An agreement between the deceased and the Appellant was produced in evidence by the Appellant. It is clear from the judgment of the trial magistrate that he was of the view that the agreement did not meet the threshold under Section 3(3) of the Law of Contract Act which states as follows:
No suit shall be brought upon a contract for the disposition of an interest in land unless—
a. The contract upon which the suit is founded—
i. is in writing;
ii. is signed by all the parties thereto; and
b. the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:
Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.
17. The aforesaid Section was an amendment to the law of Contract Act which came into force on 1 st June, 2003. The agreement in issue was entered into on 5 th July, 1984. The amended version could not therefore apply retrospectively. The trial magistrate was therefore wrong in applying provisions of a statute whose Sections were not applicable as at the time the contract was entered into.
18. Prior to the amendment of 2003, subsection 3 read as follows:
“No suit shall be brought upon a contract for 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 changed or by some person authorized by him to sign it....”.
19. The Court of Appeal in the case of Williams & Kennedy Limited & 3 Others (Supra) dealt at length on the difference between Subsection (3) which existed before 1 st June, 2003 and the one which is now in force and which took effect on 1 st June, 2003. The court stated as follows:
“The difference between this provision and the subsequent amendment in that beyond the need for the agreement to be in writing, there was the option of a memorandum or note of the same, so long as such memorandum or note was “signed by the person to be charged” or by a person authorized by him to sign it. It did not have to be signed by that person himself, as an agent of his could sign it. An acknowledgment of the existence of an agreement could, therefore, suffice and both parties did not have to have signed it. More importantly, there was no requirement for attestation of each signature of the parties by a witness who was present. In short, the path to proof of the existence of and for enforcement of an agreement was much broader and easier to navigate.
But that was not all the subsection before amendment also had to proviso that flung the door of jural enforcement of such an agreement even wider:
“Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to 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
2. Being already in possession; continues in possession in part performance of the contract and has done some other at in furtherance of the contact”.
20. The evidence which was adduced before the trial court is that though the Appellant did not know how to read and write, PW2 Francis Muteti King’ola who wrote the agreement stated that the Appellant held his hand while writing the agreement to signify that she was bound by the terms of the agreement according to the Kamba traditions. This evidence was not dislodged. Further evidence adduced is that the Appellant’s son Matheka Muinde was present. This son was literate and he signed the agreement and received part of the purchase price.
21. The deceased’s nominee was put in possession and remained in possession for over 30 years until the Appellant stopped him from cultivating on the land. This is what prompted the deceased to file a suit against the Appellant in 2018. If what the Appellant wants the court to believe was a lease, then the Appellant should have stopped the deceased’s nominee in or around 1991 after the expiry of the 7 years lease which she alleges to have been the case. The Appellant should not have waited for 27 more years after the expiry of the alleged lease to lay claim to the land.
22. The agreement of 5 th July, 1984 met the requirements of Section 3(3) of the then Law of Contract Act which existed before the amendment. The Appellant’s son Matheka Muinde who was literate signed and was aware of the agreement as he even received some money which was part of the sale agreement. The agreement was therefore enforceable and the trial magistrate was wrong in applying the provisions of Section 3(3) of the Law of Contract which came into force on 1 st June, 2003 to discredit the agreement.
23. It is clear from the judgment of the trial magistrate that one of the reasons for dismissing the Appellant’s suit is that there was no consent of the Land Control Board which had been obtained. There was no one who raised the issue of non-grant of the consent of the Land Control Board. Even if this would have been raised, this alone would have not been used to defeat the Appellant’s suit. It would have been unconscionable for any of the parties to have raised it after several decades.
24. In the case of Aliaza (Supra) the Court of Appeal stated as follows:
“Under the new Constitutional dispensation and in light of the provisions of Section 7 of the sixth schedule to the Constitution, the Land Control Act must be read in a manner that does not give succor to a party, such as the respondent, who wishes to renege on his contractual obligations in order to steal a match on the purchaser”.
25. The case of Willy Kimutai Kitilit –vs- Michael Kibet (2018) which dealt with the issue of failure to obtain consent of the Land Control Board was brought to the attention of the trial magistrate but he ignored it. The decision was binding on the trial magistrate but he chose to ignore it and went ahead to hold that the transaction did not get the consent of the Land Control Board. The Court of Appeal judges in this case held as follows:
“As we have held in essence that, the lack of the consent of the Land Control Board does not preclude the court of giving effect to the equitable principles, in particular the doctrine of constructive trust, we find that the trial court reached the correct decision and therefore the appeal has no merit”.
26. The trial magistrate was plainly wrong in ignoring binding decisions of superior courts and finding that consent of the Land Control Board was necessary.
Whether the Concept of constructive trust is applicable in the circumstances of this case
27. The evidence which was adduced before the trial court is that the agreement was entered into between the deceased and the Respondent on 5 th July, 1984. The deceased gifted the land to his son in law who took possession and started cultivating it. He cultivated it until 2014 when he was stopped. As at the time the Respondent stopped the deceased’s son in law from cultivating, he had been on the property for 30 years. The Respondent had been paid all the monies agreed in the sale agreement. The Respondent could not wake up after 30 years and claim that what she entered into with the deceased was a lease not a sale.
28. A constructive trust had been created in favour of the deceased over the land. This is what the Court of Appeal Judges held in the cases of Aliaza and Willy Kimutai Kitilit (Supra). The Respondent was trying to renege on the agreement by calling it a lease. I therefore find that the doctrine of constructive trust is applicable in the circumstances of this case.
29. One of the reasons for dismissing the Appellant’s suit is that there was no description of the dimensions of the land being purchased. The trial magistrate stated as follows:
“I note that this agreement makes no reference to the land being transacted upon or its dimensions”.
30. The sale agreement was written in Kamba language and the same was translated into English. The Appellant produced the agreement in Kamba as well as the translated version. The agreement stated that the land being sold was 36 metres. PW2 Francis Muteti King’ola is the one who wrote the agreement. It is not clear why his name in the proceedings is given as Francis Nzimbi Kinyola yet his statement dated 20 th October, 2018 which the trial magistrate adopted gives his names as Francis Muteti King’ola. Be that as it may, the two names appear to be referring to the same person who wrote the agreement and recorded a statement and proceeded to testify in court.
31. The witness testified as follows:
“The 36 metres in the agreement was the width of the land. There was a road on the other side. Since Kamunya Kavingo farmed on the land until 2014. I am a neighbor. That is all.”
32. The evidence which was adduced before the trial court clearly shows that the land which was being sold was definable. It was 36 metres in width and the length terminated at a road which was on the other side. The deceased’s son in-law was put in possession and cultivated the land until 2014 when he was stopped by the Appellant. The trial magistrate was therefore wrong in finding that the dimensions of the land were not defined.
33. The trial magistrate was equally wrong when he made a finding that the agreement did not make any reference to the land being transacted upon. The land from where the deceased purchased the 36 metres had not been adjudicated. Adjudication was only done much later and title came out in the name of the Appellant and her co-wife Mbula Munayalo on 20 th February, 2007. There is no way the land would have been described as Mbitini/Mutyambua/8 in 1984 before the adjudication process had been done.
34. The sale agreement described the Appellant as the seller and the evidence adduced did not show that there was any other parcel owned by the Respondent and her co-wife other than the one which was being sold in 984.
Whether the Applicant was entitled to the reliefs in his claim before the lower court
35. From the analysis hereinabove, it is clear that the Appellant was unlawfully removed from the suit property in or around mid August, 2014. It is also clear that the deceased purchased the suit property on 5 th July, 1984. It is also clear that a constructive trust had been created over the suit property in favour of the deceased and that there is need for the purchased property to be transferred to the estate of the deceased. It is also clear that the Respondent trespassed on to the deceased’s land in mid August, 2014. Trespass to land is actionable per se.
36. There was a prayer for mesne profits. The trial magistrate found that there was no evidence placed before him as to award any mesne profits. On this the trial magistrate was correct but in view of his earlier findings on the basis of the sale, there was no need of addressing the issue of mesne profits. Mesne profits are in the nature of special damages which have to be pleaded and proved. This was not done. On the issue of trespass, I note from the evidence that the suit property is about ¾ of an acre. The Appellant has been kept out of this land for over twelve (12) years. Doing the best I can and given the rural nature of the location of the land, I will assess nominal damages in the sum of Kshs.50,000/=.
Disposition
37. I have said enough to demonstrate that the trial magistrate was wrong in dismissing the Appellant’s suit. I allow the appeal, set aside the judgment delivered on 21 st January, 2025 and in place thereof enter judgment for the Appellant in the lower court as follows:
a. A declaration that the deceased Kamuya Kavingo was a bonafide purchaser for value of 36 metres of land out of land parcel number Mbitini/Mutyambua/8 since 5 th July, 1984.
b. A declaration that the Defendant holds 36 metres of land out of land parcel number Mbitini/Mutyambua/8 in trust for the estate of Kamuya Kavingo.
c. An order compelling the Defendant to transfer 36 metres of lnd out of Land Parcel No. Mbitini/Mutyambua/8 to the Estate of Kamuya Kavingo within 60 days failing which the Deputy Registrar of this court to sign all the necessary documents to ensure that land measuring 36 metres is excised out of Mbitini/Mutyambua/8 and registered in the Estate of Kamuya Kavingo.
d. An order of permanent injunction is issued restraining the Defendant, her servants and or agents from interfering, trespassing and or interfering with a portion measuring 36 metres within LR No. Mbitini/Mutyambua/8.
e. General damages for trespass in the sum of Kshs.50,000/=.
f. Costs of the suit and the appeal.
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HON. E. O. OBAGA, FCIArb
JUDGE
RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 17 TH DAY OF SEPTEMBER, 2026.
IN THE PRESENCE OF:
Mr. Amutala for Appellant
Court assistants – Kilonzo & Musyoki
ELC APPEAL NO. E002 OF 2025 14 | Page