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JudgmentJOHN GICHIMU KABAO VS STEPHEN ZACHARY KIMANI NJOROGE39 min read

JOHN GICHIMU KABAO VS STEPHEN ZACHARY KIMANI NJOROGE

Environment and Land Court at Naivasha Environment and Land Court · · Oundo M Clausina

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REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA

ELC APPEAL NO. E002 OF 2024

JOHN GICHIMU KABAU………………………………..…..……..………..PLAINTIFF

VERSUS

STEPHEN ZACHARY KIMANI NJOROGE……………………..………DEFENDANT

(Being an Appeal from Judgement of the Chief Magistrates CMCC 1 of 2016 at Naivasha dated 1st March 2024 delivered by Hon. J. M. Karanja (S.P.M) online from Kajiado Court)

JUDGEMENT

  1. Coming up for determination on Appeal is a matter which was heard and determined by J. Karanja, Senior Principal Magistrate, wherein upon considering the evidence of both parties, vide his Judgment delivered on 1st March, 2024, the learned Magistrate found in favor of the Plaintiff’s case and entered judgement against the Defendant thereby ordering the parties to bear their own costs.
  2. The Defendant/Appellant being dissatisfied with the said findings and Judgement, has now filed the present Appeal based on the following grounds in his Amended Memorandum of Appeal:
      1. That the learned Trial Magistrate erred in law and fact in dismissing Appellant’s case against the weight of evidence that was adduced in Court.
      2. That the learned Trial Magistrate erred in law and facts in not finding that the sale agreement of land parcel No. Naivasha/Mwichiringiri Block 1/160 between the Appellant and the Respondent was complete.
      3. That the learned Trial Magistrate erred in Law and facts in failing to find that the Respondent in his Plaint had admitted that the Appellant was entitled to land parcels Naivasha/Mwichirigiri Block 1/2729 and 2731 measuring 1.298 Hectares (which were resultant sub-divisions of Naivasha/Mwichiringiri Block 1/160) as the Appellant had purchased the same.
      4. That the learned Trial Magistrate erred in law and facts in awarding the Respondent general damages of Kshs. 200,000/= when there was no evidence or grounds to award the Respondent such damages.
      5. That the learned Trial Magistrate erred in law and facts in awarding the Respondents Kshs. 200,000/= which was excessive in the circumstances of the instant case.
      6. That the learned Trial Magistrate erred in law and facts in failing to consider the fact that the Appellant pursuant to the agreement of sale had taken possession of the land that he was purchasing, had built a house and was working on the land.
      7. That the learned Trial Magistrate erred in law and facts in failing to find that the Respondents evidence in court did not support his pleadings.
      8. That the learned Trial Magistrate erred in law and facts in not finding that the Respondent had not raised the issues of rescinding the Agreement of sale in his Pleadings.
      9. That the learned Trial Magistrate erred in law and facts in finding that the Appellant’s time to claim the land had expired.
      10. That the learned Trial Magistrate erred in law and facts in not finding that the Appellant was in possession and the cause of action arose when the Respondent filed the suit against the Appellant.
      11. That the learned Trial Magistrate erred in law and facts in making a finding that the Sale Agreement between the Appellant and the Respondent was non-existent and enforceable.
      12. That the learned Trial Magistrate erred in law and in facts in making a finding of the poor state of the building and state of the Appellants land in the Judgement which was not supported or captured on record at the time of scene visit.
      13. That the learned Trial Magistrate erred in law and facts in failing to find that the Respondent changed the status of the lands upon subdividing the land in 2011 thereby changing date when cause of action was required to run.
      14. That the learned Trial Magistrate erred in law and facts in finding that the purchase price was not paid when there was evidence that the purchase price was fully paid.
      15. That the learned Trial Magistrate erred in law and facts in failing to consider that the Appellant has been in possession of the land to date.
  3. The Appellant thus prayed for the following orders:
      1. That the Honourable Court do find that the Appellant is entitled to Four (4) acres out of the Respondent Land Parcel No. Naivasha/Mwichiringiri Block 1/160 and an order of specific performance should issue.
      2. That this Honourable Court do find that the Appellant is entitled to get land parcel Nos. Naivasha/Mwichiringiri Block 1/2729 and 2731 measuring 1.298 Hectares which were resultant parcels of subdivision of land parcel No. Naivasha/Mwichiringiri Block 1/160.
      3. Costs of the Appeal.
      4. Any further or other relief that the Honourable Court may deem fit to grant.
  4. The Respondent vide his Reply to Appeal dated 20th July 2025 stated that the trial Magistrate had been right in dismissing the Appellant’s case as there had been clear evidence that the sale agreement dated 16th February 2005 was unenforceable having been caught up with the provisions of Section 4(1) of the Limitation of Actions Act. That the counter claim had been filed on 23rd February 2016 seeking specific performance of an agreement of 16th February 2005, a time difference of 11 years. That further, specific performance could not issue as the Land Control Board consent was never applied for which was a mandatory requirement in land matters.
  5. That the learned trial Magistrate had been right in holding that the Appellant was not entitled to land parcel No. Naivasha/Mwichiringiri Block 1/2729 and Naivasha/Mwichiringiri Block 1/2731 because the agreement dated 16th February 2005 was unenforceable. That in any case, the case herein was not a claim against title by the Appellant since the land was legally registered in the Respondent’s names. That the learned trial Magistrate was right in the award of Kshs. 200,000/= which was appropriate in the circumstances since he had visited the land in dispute and made an observation that the Appellant had not been in occupation of the land at all.
  6. That the learned trial Magistrate did not deal with issue of rescinding the agreement since the same did not arise. That instead, the issue that had arisen was on limitation of time in relation to the agreement. That the learned trial Magistrate was right in holding that time had expired for the Appellant to claim the land.
  7. The Respondent sought for the dismissal of the Appeal stating that an order of specific performance could not issue and neither was the Appellant entitled to land parcel No. Naivasha/Mwichiringiri Block 1/2729 and Naivasha/Mwichiringiri Block 1/2731.
  8. The Appeal was disposed of by way of Witten submissions.

Appellant’s Submissions.

  1. The Appellant''s submissions focus on demonstrating that the Respondent had, both in pleadings and testimony, largely conceded to his (Appellant''s) entitlement to the purchased land, and that the trial court erred in making findings not supported by the Respondent''s pleadings.
  2. His key factual and pleading points were that at paragraph 6 of the Plaint and the Respondent''s witness statement dated 31st December 2025, the Respondent had conceded that the Appellant was entitled to land parcels Naivasha/Mwichiringiri Block 1/2729 and 2731 which were resultant subdivisions of Block 1/160. That the only parcel of land that the Respondent sought to be "freed" from the Appellant''s caution was Naivasha/Mwichiringiri Block 1/2730.
  3. The Appellant maintained that the sale of land and the subsequent subdivision of the mother title Naivasha/Mwichiringiri Block 1/160 was not in dispute based on the Respondent''s pleadings.
  4. That the Respondent''s claim in court during testimony that the Appellant had not paid Kshs. 200,000/= was never pleaded in the Plaint or witness statement wherein it was not allowable for a party to raise issues not supported by pleadings. That the Respondent had even denied pleaded facts, like subdividing the mother title, during cross-examination. That the Respondent had not pleaded or raised the issue of rescinding the sale agreement.
  5. That the Appellant had been in possession of the land from 16th February 2006 which was a period of 11 years and 11 months before the case was filed. That the Respondent had conceded in cross-examination that the Appellant bought 4 acres of land to be excised from the mother title, that a surveyor and the Respondent showed the Appellant his portion wherein he had built a house on the portion and the Respondent never asked for the Appellant''s removal or sought eviction in his pleadings. That he had he had paid the entire purchase price of Kshs. 200,000/=. That the Agreement was enforceable wherein the Respondent put him in possession with full knowledge of the subsequent developments like house built in 2006.
  6. That the subdivision that had created Naivasha/Mwichiringiri Block 1/2729 and 2731 was done on the 29th March 2012, wherein the Respondent had admitted that these numbers contained the Appellant''s purchased land, reaffirmed the sale agreement. That his Defence and Counterclaim had been filed on 24th February 2015, which was within time.
  7. The Appellant submitted that the trial court had erred by making a finding that the Appellant was in breach of the agreement by failing to pay or for the dilapidated state of the house, which was an allegation that had not been pleaded by the Respondent. That indeed it had been the Respondent who had been in breach for failing to issue a title deed and subdividing the land without the Appellant''s knowledge.
  8. That the trial court had also erred in making a finding about the "dilapidated state of the houses" without a corresponding record in the proceedings of what the Court saw during the scene visit.
  9. The Appellant argued that given the long period of possession which was over 11 years, wherein he had constructed the house with the Respondent''s knowledge, the equitable doctrines of Constructive Trust and Proprietary Estoppel should apply.
  10. Citing the Court of Appeal decision in Willy Kimutai Kitilit v Michael Kibet Civil Appeal No. 51 of 2015 at Eldoret, the Appellant argued that the failure to obtain Land Control Board (LCB) consent should not be a barrier to obtaining the land by specific performance where constructive trust and proprietary estoppel were applicable. He thus sought for the appeal to be allowed and the reliefs sought to be granted.

Respondent’s Submissions

  1. The Respondent focused his submissions on the legal principles governing the enforceability of the land sale agreement, asserting that the Appellant was not entitled to an order of specific performance.
  2. He framed two primary issues for the court:
  3. Can an order for specific performance issue to the Appellant?
  4. Was Kshs. 200,000/= awarded as damages appropriate?
  5. On the first issue for determination, the Respondent argued that specific performance must be based on a valid and enforceable contract, which the sale agreement dated 16th February 2005, was not, for two main reasons:
  6. Lack of Land Control Board (LCB) Consent; that the Appellant had conceded in cross-examination that he had not obtained the LCB consent for the transfer of the land. That without LCB consent, the agreement had been rendered invalid. He relied on the decision in Reliable Electrical Engineers (K) Limited v Mantrac Kenya Limited [2006] eKLR, to argue that specific performance cannot be granted if the contract suffers from a defect, such as illegality or failure to comply with formal requirements (like LCB consent).
  7. Limitation of Actions (Time Barred); that the sale agreement dated 16th February 2005, was unenforceable because it was caught by the Limitation of Actions Act. That actions founded on a contract ought to be brought within the prescribed timelines, and this contract had expired, therefore it was null, and void under the law. He placed reliance on the decision in Michael Benhault Otieno v National Cereals & Produce Board [2017] eKLR, submitting that the sale agreement was unenforceable due to the statute of limitation.
  8. On the second issue for determination, on the issue of the adequacy of the awarded damages (Kshs. 200,000/=), the Respondent submitted that the award was discretionary and left the matter to the court''s determination.
  9. In conclusion, the Respondent submitted that since the Appellant''s case relied entirely on the agreement of 16th February 2005, which agreement was invalid for lack of LCB consent and therefore unenforceable due to the Limitation of Actions Act, the Appeal must fail with costs.

Analyses of the evidence.

  1. I have considered the record of Appeal, the holding by the trial Magistrate,

the written submissions by learned Counsel, the authorities cited and the applicable law. Conscious of my duty as the first Appellate Court in this matter, I have to reconsider the decision Appealed against, assess it and make my own conclusions as was stated by the Court of Appeal in Paramount Bank Limited vs. First National Bank Limited & 2 Others (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR) where the court held as follows;

“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.”

  1. From the proceedings in the trial court, Stephen Zachary Kimani Njoroge, the Plaintiff/Respondent herein instituted a suit, vide a Plaint dated 31st December 2016, against John Gichimu Kabau, the Defendant/Appellant herein in Naivasha CMCELC No. 1 of 2016 where he sought for the following orders;
      1. That there be an order of permanent injunction restraining the Defendant whether by its servant, employees, agents or anybody acting on its behalf under its name from entering or otherwise dealing on property Title Number Naivasha/Mwichiringiri Block 1/2730 or any part thereof.
      2. An order for the removal of the caution registered on 21st November 2012.
      3. General Damages.
      4. Costs of the suit.
      5. Any other relief that the court may deem fit and jus to grant.
      6. Interest on (iii) and (iv) above.
  2. Subsequent to the filing of the suit, the Defendant/Appellant filed his Statement of Defence and Counterclaim dated 23rd February 2016 denying the allegations contained in the Plaint while putting the Plaintiff to strict proof. His argument had been that he had fully paid the purchase price to the Plaintiff. That there was no time that the Plaintiff had ever informed him that the surveyor was coming to subdivide the land neither had they agreed that a road of access measuring nine (9) meters be severed off from both their parcels of land. That he did not require a second road to be severed from his land as his land touched the said Highway and was being served from the said Naivasha-Nairobi High way. That he was not a party or involved in the sub-division of the mother title to land parcel No. Naivasha/Mwichiringiri Block 1/160. That he claimed a purchaser’s interest to the cautioned land. That the suit herein was therefore frivolous, vexatious and an abuse of the court process and ought to be struck out with costs.
  3. In his Counterclaim, he claimed against the Plaintiff for orders of specific performance of the sale agreement dated 16th February 2005 being the that the Plaintiff be ordered to transfer to him four (4) acres of land out of land parcel No. Naivasha/Mwichiringiri Block 1/160, costs of the suit and any other suitable or appropriate relief that the court may deem fit to grant.
  4. The Plaintiffs response to the Defendant’s Statement of Defence and Counterclaim had been that the Defendant had not fully paid the purchase price within the time stipulated and therefore the Defendant had breached his obligations in the contract and therefore he was not obliged to fulfill the contract. That he was thus entitled to the prayers sought in his Plaint.
  5. That the agreement for sale dated 16th February 2005 was invalid, unenforceable and incapable of specific performance and the Defendant’s Statement of Defence and Counterclaim should be dismissed with costs and judgement entered against the Defendant as prayed in the Plaint.
  6. The Defendant’s response was for the Plaintiff’s Reply to Defence and Defence to Counterclaim to be dismissed with costs and judgement entered against the Plaintiff be entered as prayed in the Counterclaim.
  7. Subsequently, the case proceeded for hearing wherein the Plaintiff adopted his witness statement as his evidence in chief and then proceeded to testify as PW1 to the effect that he had discontinued the agreement for sale with the Defendant because he had not paid the full purchase price having only paid a sum of Kshs. 200,000/=. That he had not paid the transfer costs wherein parties did not go before the Land Control Board (LCB).
  8. He prayed that she be allowed to cancel the agreement, the caution be removed and that the court awards him cost of the suit. He produced the documents as Per the Supplementary List of Documents dated 24th March 2022 as follows
      1. Copy of the title deed as Pf exh 1
      2. Copy of the Sale Agreement as Pf exh 2
      3. Copy of search as Pf exh 3
      4. Letter dated 21st May 2014 as Pf exh 4
      5. Handwritten note dated 20th September 2005 as Pf exh 5
      6. Letter dated 29th August 2005 as Pf exh 6.
  9. In cross examination, confirmed that although he had not placed a caution on land parcel No. Naivasha/Mwichiringiri Block 1/2730, yet he wanted it to be removed and for the Defendant to be removed from the land. That in his pleadings, he had only sought for the removal of the caution, costs of the damages he had incurred as well as for costs of the suit. That he had not sought for cancellation of the agreement. He confirmed that whereas they had entered into a Sale Agreement in the year 2005, the Defendant was to enter into the land on 31st December 2005. That motherless, the said Defendant was neither in the farm nor farming thereon.
  10. He however confirmed that the Defendant had put up a fence and built a big house in the year 2006 on the land but he could not remember if there was a kitchen and toilet outside since he did not live there. That he had however seen a big house and a smaller house on the land.
  11. That he had entered into an agreement with the Defendants to sell to him a portion of 4 acres of land at a purchase price of Kshs. 1,400,000/=. That the Agreement had been drafted by his lawyer in after they had visited him. He admitted that he had been paid a sum of Kshs. 1,200,000/= wherein the Defendant was to pay Kshs. 400,000/= (sic) but instead of paying Kshs. 800,000/=(sic), he had paid only Kshs. 200,000/=. That whereas he could not remember the details, the Defendant had paid a total of Kshs. 1,200,000/= and that there had been receipts to that effect.
  12. When he was referred to the note dated 8th November 2012 at the back of the Agreement that indicated that the full purchase price had been paid to the vendor, he denied any knowledge to that effect stating that he was not sure about it. He however admitted that the stamp therein belonged to his Advocate by the name Ngure.
  13. That the land he was to sell to the Defendant was to be excised from parcel of land No. Naivasha/Mwichiringiri Block 1/160 measuring 9 acres but the land had not been subdivided to date. That a surveyor from Nakuru called Odungo had measured 4 acres portion of land in the presence of both the Plaintiff and the Defendant which land had been and curved out. That after the Defendant had been shown the 4 acres portion, he had proceeded to fence it off without his knowledge. He denied having sub-divided land parcel No. Naivasha/Mwichiringiri Block 1/160 into 3 portions or the portion he was selling.
  14. When he was referred to paragraph 6 of the Plaint, he refuted the contents contained therein stating that he did not go back to subdivide the land that he had sold to the Defendant. That whereas he was aware of the map, they had already completed their business with the Defendant who was not present when the surveyor drew the map. He stated that his Advocate must have forgotten to indicate that he had not been paid the money.
  15. He disowned his witness statement, stating that he never signed it. He denied having blocked access into the farm explaining that he got the plots from the Naivasha side of the land wherein there existed an old road. He clarified that whereas the entire land measured 9 acres, the agreement had been for the sale of four (4) acres of land on the Kinungi side which had a small road running between the land.
  16. He maintained that the Defendant together with his wife and son had been present when the surveyor had measured the land and that the road did not touch the Defendant’s plot of land nor intrude therein leaving a portion of 31/4 acres. That in fact, the Defendant had also engaged the services of his own surveyor. He confirmed that the Defendant had not been farming the suit land continuously since the year 2006.
  17. He also confirmed that he did not have any houses on the portion of the land that he had sold to the Defendant and was not prepared to give the Defendant parcels Block 1/2729 and Block 1/2731 which were different from what he was claiming. That the Defendant’s side was not interfered with as had been subdivided.
  18. Upon being referred to page 2 of the mutation form, he confirmed that the signature therein was his stating that since the Defendant had a balance of the purchase price owing, he did not ask for the title That whereas he had ploughed the land using a tractor, he never planted anything therein. That the Defendant never planted any trees on the land and neither had he ever lived therein. That the land was vacant.
  19. In re-examination, he denied having filed suit because the Defendant had been blocking his sons access to the land. He confirmed that the Defendant had put up a barbed wire fence on the land from the road up to the end of the farm. That he wanted the caution to be removed. He also confirmed that he did not sign a transfer to the Defendant because he had wanted him to first complete the payment of the purchase price as per the terms of the Sale Agreement of the year 2005. That he had changed his mind because the Defendant often approached him when he was completely drunk and could not express himself.
  20. When he was referred to Pf exh 2, the Sale Agreement, he confirmed that the Defendant did not pay the balance of the purchase price as agreed. That he did not instruct a lawyer in the year 2012 to write a note indicative of full payment of the purchase price. He confirmed that the instalment of Kshs. 400,000/= was to be paid on 6th March (sic) and that Ksh 200.000/= was to be paid on 6th May (sic). He was adamant that he had not been paid the sum of Kshs. 1,400,000/=.
  21. His evidence was that the Defendant was to enter the land after he had paid the full amount. That he therefore did not enter the land with his permission and neither had he given him permission to sell the land. He confirmed that the Defendant usually ploughed the land although he never plants therein. That whereas the Defendant had built a house on the land, he did not live in it. His argument was that the Defendant was carrying out activities on the land without his permission.
  22. That whereas the Defendant may have paid a sum of money to the lawyer, the payment of a sum of Kshs. 200,000/= had not been recorded. He confirmed that the Defendant did not have an advocate. He reiterated that it was no longer his intention to give the Defendant any portion of land. That the Defendants never approached him so that they could go to the Land Board for consent to transfer the land.

The Plaintiff then closed his case

  1. The Defence case proceeded with the testimony of John Gichimu Kabau, the Defendant herein who testified as DW1 to the effect that the Plaintiff had sold him a parcel of land measuring 4 acres in the year 2002 at a cost of Kshs. 1,400,000/= wherein the sale Agreement dated 16th February 2005 had been drafted by the Plaintiff’s Advocate, one Mr. Ngure at his office in Nakuru.
  2. That he had made payment in three instalments wherein he had paid a sum of Kshs. 800,000/= in cash, the second installment had been for Kshs. 400,000/= while the third installment was Kshs. 200,000/= after which the Plaintiff’s lawyer had acknowledged full payment, signed and stamped. That he did not occupy the land immediately but in the year 2006. That he had subsequently built a 3 bedroomed house and a 2-roomed kitchen, planted blue gum and cedar trees therein. That he had also fenced the land using live fence and left a caretaker therein. That whereas the Plaintiff had not yet given him the title deed, he was still farming therein. He explained that the Plaintiff had informed him that he would give him the title deed after he had processed the title deeds for some other plots.
  3. That they used to access the land through the Plaintiff’s farm wherein on the upper side, there was a marram road while on the other side, there was Nairobi-Nakuru Highway. On four occasions, he had requested the Plaintiff to process the title deed in his name but had been told that it was not ready.
  4. When he was referred to the Mutation Form for Naivasha/Mwichiringiri Block 1, he confirmed that he had seen two mutation forms at the Advocate’s office but that he had not been present when the plot numbers were issued and neither had he been involved when the Plaintiff was giving out his plot. That the Plaintiff sued him so as to recover plot numbers Naivasha Mwichiringiri Block 1/2729, 2730 and 2731 wherein he had placed a caution to the plot because they did not measure 4 acres that the Plaintiff had promised to sell to him.
  5. Upon being referred to paragraph 6 of the Plaint, he confirmed that he was only entitled to the property known as Naivasha/Mwichiringiri Block 1/2729 and 2731 whose acreage was supposed to be 1.291 Hectares. That whereas the Plaintiff wanted to block him from accessing Block 1/2730, he had not denied having not been paid or that he was the purchaser.
  6. The Defendants then adopted his witness statement as his evidence in chief and produced the documents, as per his list of documents dated 23rd February 2016, in evidence as follows:
      1. Sale Agreement dated 16th February 2005 as Df exh 1.
      2. Copy of title deed to land parcel No. Naivasha/Mwichiringiri Block 1/160 as Df exh 2.
      3. Certificate of Official Search dated 2nd December 2015 as Df exh 3.
      4. Certificate of Official Search to land parcel No. Naivasha/Mwichiringiri Block 1/2730 dated 22nd February 2016 as Df exh 4.
      5. Certificate of official search to land parcel No. Naivasha/Mwichiringiri Block 1/2729 dated 22nd February 2016 as Df exh 5.
      6. Caution Registration Application & receipt to Land Parcels Naivasha/Mwichiringiri Block 1/2729, 2730 & 2731 dated 7th November, 2012 as Df exh 6.
  7. He confirmed that the Mutation Form had been registered on 10th September 2009 which Form he produced as Df exh 7 and sought from the court help to get his 4 acres portion of land and title deed from the Plaintiff.
  8. In cross-examination, he confirmed that he had produced the sale agreement dated 16th February 2005 for which he did not make the payment on the said date. He reiterated that he had made payment to the lawyer in his office, who had noted the same. That the said Advocate had the documents in his office showing the payments that had been made on 8th December 2012. That the terms of the Agreement dated 23rd February 2005 was that he was to make payments in the year 2005. That further, the agreement had indicated that he was to take possession of the land in December 2005 after he had finished making the payment. That he had made the payments in the year 2012 hence he had not complied with the terms of the agreement.
  9. He confirmed that there was no document showing that the Plaintiff had permitted him to enter into the land and build therein. That whereas he was aware that he ought to have a permit for building, he did not have one.
  10. He confirmed that whereas the Plaintiff had not taken him to the Land Control Board to obtain the consent transfer, he had also not signed any document with the Board.
  11. He confirmed that the Mutation Form was executed on the 10th September 2009 wherein he had completed the payment in the year 2012 which was not within time. He nonetheless blamed the Plaintiff for not transferring the land to him despite having made the full the payments, in cash, at the lawyer’s office.
  12. That whereas the area had electricity and water passing nearby, he had not connected either. He admitted that he had no photographs showing that he was farming on the land. He refuted having drafted the letter dated 29th August 2005 stating that it had been Advocate Ngure who had written it.
  13. He confirmed that whilst he was to pay a sum of Kshs. 200,000/= by 3rd May 2005, he did not comply. He however denied being an alcoholic or being forgetful. That also denied knowing Mr. Kamau’s children and confirmed that he had registered a caution to enable him get his land.
  14. That the Plaintiff had not informed him that he wanted to recall the agreement and neither had his lawyer informed him that the Plaintiff wanted to rescind the agreement. That his sons did not have a title
  15. In re-examination, he maintained that he had never drunk alcohol to the point where he would forget. That he knew two of the Plaintiff’s sons and that it was true that one of them lived on his land and had built a house therein. He maintained that he was not the one who had written the letter asking for time to pay the money. That he had paid all the money on 8th November 2012 and that the same had been noted in the agreement, and had been signed and stamped by the Plaintiff’s Advocate one Mr. Ngure.
  16. That the Plaintiff did not inform him that he did not repay him the money and neither had he asked him for the same. That further, the Plaintiff had not told him that he would not give him the land because he did not pay. He confirmed despite not having obtained a permit from the council, he had built a semi-permanent house on the land because he was not aware that he required such permit. That asked the court to visit the suit land to confirm that he was farming there and had also constructed on the land.
  17. DW2, one Peris Ngina Gichimu confirmed that the Defendant was her husband before testifying that the Defendant had bought 4 acres portion of land from the Plaintiff at a purchase price of 1,400,000/= which had been paid in full. That the sale agreement had been executed at the Advocate’s office in Nakuru.
  18. That the 4 acres of land was to be excised from land parcel No. Naivasha/Mwishirigiri Bloock 1/160. That there were two roads on the plot, one was a tarmac road from the Naivasha-Nairobi highway while on the other side was a road that led to Ihindu towards dam.
  19. She explained that the said parcel number 2730 had been excised from parcel Mwichiringiri No. 160 by a surveyor known as Mr. Odunge with their involvement. That the said parcel of land had been divided into two portions being land parcel Nos. 2729 and 2731. That whereas the Plaintiff had remained with the parcel No. 2730, they had placed a caution on it because the Plaintiff had given them land that was less by ¾ of an acre after he had hived out a road from one portion despite there having been no agreement that the road would be hived from their land. She confirmed that that they had built a 3 bedroomed-house and a kitchen on the land.
  20. She testified that after the Plaintiff had hived the road from their land, he had given them a portion measuring 31/4 acres. She sought help from the court to direct the Plaintiff to give them the 4 acres and title to the land so that they could subdivide land to their children. She adopted her witness statement dated 4th April 2022 as her evidence in chief.
  21. In cross-examination, she confirmed that she was Defendant’s wife and that she had been present during execution of the sale agreement dated the 16th February 2005 which was done at Advocate Mr. Ngure’s office. That one Alice Nyambura also witnessed the execution. That subsequently they had visited the lands office with the Defendant but they were not given the consent and no transfer had been signed.
  22. She confirmed that the parcel numbers 2729, 2730 and 2731 were all registered in the Plaintiff’s name. That they had not filed any case about the land herein other than placing the caution.
  23. In re-examination, she confirmed that in their Counterclaim, they had sought to be given the land and although they had been called by the Plaintiff to be given the land, he gave them nothing. That the Plaintiff had not denied selling land parcel numbers 2729 and 2731 to them.

The Defence had thus closed her case.

Determination.

  1. Having re-opened up the case for rehearing on both questions of fact and law, I find that this is a case where the dispute arises from a land sale agreement involving the Plaintiff/Respondent, Stephen Zachary Kimani Njoroge, and the Defendant/Appellant, John Gichimu Kabau, concerning land originally titled Naivasha/Mwichiringiri Block 1/160. The Plaintiff''s Claim vide his Plaint dated 31st December 2016 was that he had sought orders primarily against the Defendant''s activities on a parcel of the subdivided land namely Naivasha/Mwichiringiri Block 1/2730 and a permanent injunction restraining the Defendant from entering or dealing with it. He had also sought for the removal of a caution registered on 21st November 2012 on the land and for General Damages and Costs.
  2. The Defendant''s Response in his Defence and Counterclaim dated 23rd February 2016 was a denial of the Plaintiff''s claims, asserting that he had fully paid the purchase price for 4 acres of land and had a purchaser''s interest. In his Counterclaim, he had sought for specific performance to compel the Plaintiff to transfer to him four (4) acres of land out of the original land parcel Naivasha/Mwichiringiri Block 1/160.
  3. From the evidence herein above stated I find that the disputed issues arising therein being that whereas the Plaintiff’s contention was that the agreement was discontinued because the Defendant had not paid the full purchase price, there had been an outstanding balance, the Defendant’s contention on the other hand had been that he had paid the full purchase price of Kshs. 1,400,000/= in three instalments, with the final payment of Kshs. 200,000/= made in the year 2012.
  4. There was also contention by the Plaintiff that the Agreement was invalid/unenforceable due to lack of Land Control Board consent wherein the Defendants claim was that the Agreement was valid and failure to transfer was due to Plaintiff''s default for which he sought specific performance.
  5. Whereas the Plaintiff’s case had been that the Defendant entered into the suit land without permission and build a house and kitchen therein, he had however left the land vacant and not farmed continuously, the Defendants case was that indeed he had taken possession of the land in the year 2006 and built a 3-bedroom house and kitchen, planted trees, and fenced the land.
  6. The Plaintiff denied having subdivided the mother title being Block 1/160, despite signature on mutation form which evidence the Defendant refuted stating that indeed the Plaintiff had subdivided the land into parcels No. Naivasha/Mwichirigiri Block 1/2729, 2730, and 2731 thereby reducing his portion of land by carving out a road. That he had then placed a caution on the Plaintiffs land parcel No. 2730.
  7. Based on the competing claims and evidence, I find the issues arising for determination as being;
  8. Whether the sale agreement was valid and enforceable.
  9. Whether there was breach of the sale agreement.
  10. Whether the equitable doctrine of Constructive Trust is applicable.
  11. I have gained sight of the impugned land sale agreement dated 16th February 2005 that gave rise to the matter in question which was between the Respondent as the vendor and the Appellant as the purchaser, for 4 acres of land to be excised out of land parcel No. Naivasha/Mwichirigiri Block 1/160 for a consideration of 1,400,000/=. The parties had agreed that 800,000/= was to be paid immediately before execution, upon which the vendor would sign the agreement in acknowledgment of receipt of the same. 400,000/= was to be paid on or before 6th day of March 2005, wherein the last installment of 200,000/= was to be paid on 6th day of May 2005. The purchaser would then take possession of the said piece of land on 31st December 2005.
  12. The parties had also agreed that the Transfer fee was to be borne by the Purchaser while the survey fee was to be borne by the vendor and that they would share the legal fees equally.
  13. That both parties were to seek consent to transfer the land from the relevant authorities wherein the vender would then execute all documents required to effect the transfer.
  14. At paragraph 12, it had been agreed that should any party breech the agreement, they were liable to pay 10% of the purchase price as agreed liquidated damages for breach of contract.
  15. On the first issue for determination, there is no argument that whereas parties had agreed that the last installment for the purchase price of 200,000/= was to be paid on 6th day of May 2005 wherein the purchaser would take possession of the 4 acres of land, the evidence on record is that whereas the Appellant’s argument had been that he had paid the last installment of 200,000/= in the year 2012, the Respondent refuted ever having received the said payment. By failing to pay the full purchase price within the agreed-upon time in the year 2005, I find that the alleged completion of payment in 2012 was too late and was not properly documented as had been agreed upon by the vendor. This constituted a fundamental breach in the agreement and therefore the Respondent was entitled to cancellation of the agreement.
  16. The Appellant also complained of having been short changed by the Respondent to the effect that whereas the sale agreement was for the sale of 4 acres of land, the portion allegedly sold to him was less by ¾ of an acre after the Appellant had hived out a road from one portion despite there having been no agreement that the road would be hived from the land. That the land that was sold to him therefore measured 31/4 acres. That despite this shortfall the Respondent had proceeded to subdivide Naivasha/Mwichirigiri Block 1/160 without his (Appellant''s) involvement, on a claim of non-payment.
  17. Further evidence was to the effect that neither party obtained the necessary consent from the Land Control Board for the transfer of the land which was contrary to the provisions of Section 6 of the Land Control Act (Cap 302) which stipulated that the land being agricultural, parties to the sale were obligated to apply for and obtain the said consent. In the instant case both parties admitted that LCB consent was never applied for or obtained within the mandatory six months of the agreement, the transaction was therefore rendered void for all purposes. I thus find from the onset, that the sale agreement of 16th February 2005 was void and unenforceable.
  18. However, a twist of events takes place when both parties to the sale agreement confirmed that despite the shortcomings in the sale agreement, the Appellant took possession and occupation of the alleged 4 acres of land in the year 2006 wherein he built a house (3 bedroomed) and a (2-roomed) kitchen, planted blue gum and cedar trees therein. That he had also fenced the land using live fence and had been cultivating on the same.
  19. Needless to say, that in property law, particularly concerning land, the situation where a purchaser is in possession of a property but has not yet received the formal title is a complex area. This often arises in scenarios where a sale agreement has been made, part or full payment has been effected, and the buyer has moved into the property, but the legal transfer of ownership (issuance of title) has not been completed.
  20. It has been held and indeed it is trite that once a binding contract for the sale of land is signed, the purchaser is considered to have an "equitable interest" in the property, even though the legal title remains with the vendor. Indeed, a purchaser’s physical occupation of the property serves as notice to the world of their interest, even if that interest has not been registered and therefore the vendor, in essence, holds the legal title in trust for the purchaser.
  21. Evidence on record was to the effect that the Appellant had been on the suit land peacefully with no interference by the Respondent who knew of his occupation. The Appellant’s possession of the suit property constituted an overriding interest over the property, which created a presumptive and constructive trust in his favour, him having lived on the said parcels of land as a purchaser for more than 11 years and 11 months after buying it and before the case was filed. The said constructive trust thus became an overriding interest over the land.
  22. It is known that a vendor may refuse to issue titles to the purchaser for various reasons steaming from the vendor''s default, a change in mind, a better offer, or an inability to deliver a clean title etc, however in this case, the Respondent’s reason had been failure by the Appellant to complete the purchase price but the court is at loss to understand why the Respondent had waited for more than 11 years and 11 months to file suit.
  23. Section 30(g) of the Registered Land Act, Cap 300 (now repealed) provided that the rights of a person in possession or actual occupation were overriding interests as follows:

“Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted in the register (a) the rights of a person or actual occupation of land to which he is entitled in right only by such possession or occupation, save where inquiry is made of such person and the rights are not disclosed”

  1. This was the applicable law when the Appellant occupied the suit land where his right as the person in actual occupation was a key overriding interest which meant that he as a purchaser in possession, even without a formal title, had a protected interest that a subsequent buyer or chargee would take notice of. He was thus protected against fraudulent vendors attempting to sell the same land multiple times.
  2. In Obiero v Otwenya (Civil Appeal 145 of 2019) [2025] KECA 541 (KLR) (21 March 2025) (Judgment), the Court of Appeal sitting in Kisumu while agreeing with Mutungi J’s holding had inter alia observed as follows at paragraphs 26 and 27

“It was the learned judge’s view that in the circumstances thereof, a constructive trust was created in favour of the respondent, and his possession was an overriding interest over the land that required no noting in the land register. At the pertinent portion of the judgment, the learned Judge had the following to say:

“…28. In the instant suit on the evidence and the facts, I am satisfied that the plaintiff was let into possession of the suit land following the agreement of sale and payment of the purchase price. All that remained was for the parties to obtain the consent of the Land Control Board for the subdivision and transfer. Although consent for the subdivision was obtained no consent for transfer was obtained. The plaintiff remained in possession and effected developments on the suit premises. On the facts and evidence, a constructive trust was created in favour of the plaintiff such that the 1st defendant held title to the portion the plaintiff had purchased in trust for the plaintiff. The possession and occupation of the land by the plaintiff constituted an overriding interest within the provisions of Section 28 of the Land Registration Act, Cap 300 Laws of Kenya”

We completely agree with the learned Judge’s analysis of the case on both the facts and the law. Indeed, it is our view that the facts were not seriously contested. What was in question was whether the learned Judge was correct to apply the concept of constructive trust to rescue the respondent from the otherwise oppressive situation he would have found himself in on account of the provisions of the Land Control Act. As the learned Judge correctly observed, this Court has now spoken with authority on that question in the Willy Kimutai Kitilit Case (supra). We happily affirm this Court’s holding in that case; and we find the present case to be on all fours with it.’’

  1. The Supreme Court in the case of Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment), while deciding on whether a constructive trust can be imported into a land sale agreement to defeat a registered title, held as follows:

‘’…While sections 25, 26 and 28 of the Land Registration Act recognize that the rights of a registered proprietor of land are absolute and indefeasible, these are only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests include trusts. In our view, and in the absence of any limitation as to the trusts, this includes constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property is provided under law, and includes a constructive trust.

We have found that the doctrines of equity are part of our laws by virtue of section 3 of the Judicature Act. And while the Constitution entitles every person to the right to property at article 40, this right is not absolute. Article 24 provides that a right cannot be limited except by law. We have also established that, while sections 25 and 26 of the Land Registration Act provide for the rights of a proprietor and that the certificate of title is conclusive evidence of proprietorship, section 28 provides that the registration is subject to overriding interests. One of these overriding interests is trust, which includes constructive trust.

We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.”(my emphaisis)

  1. From the above finding, it is trite that the law supports the importation of a constructive trust where required by equity and good conscience to prevent unjust enrichment, and this imposition acts as an overriding interest that defeats the claim of the registered proprietor under the framework of the Land Registration Act and the Constitution.
  2. In his counterclaim, the Appellant had claimed against the Respondent orders of specific performance of the sale agreement dated 16th February 2005 for the transfer to him four (4) acres of land to be excised out of land parcel No. Naivasha/Mwichiringiri Block 1/160, costs of the suit and any other suitable or appropriate relief that the court may deem fit to grant.
  3. The provisions of Section 4(1)(a) of the Limitation of Actions Act stipulate as follows:

‘’The following actions may not be brought after the end of six years from the date on which the cause of action accrued—

(a)actions founded on contract;

(b)actions to enforce a recognizance…….’’

  1. On the other hand, Section 20(2) of the of the Limitation of Actions Act provides as follows;

‘’Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued…’’

  1. The reconciliation between the equitable doctrine of Constructive Trust (Implied Trust) and Section 4(1)(a) of the Limitation of Actions Act is a critical point in the Appellant''s counterclaim in that Section 4 (1)(a) of the Limitation of Actions Act sets a 6-year limit for actions based on simple contract. Although the 2005 agreement, upon which payments were completed in 2012 faced a clear risk of being time-barred by 2016, the provisions of Section 20(2) of the Limitation of Actions Act on the other hand provided that that no period of limitation prescribed by the Act applied to an action by a beneficiary against a trustee in respect of any fraud or fraudulent breach of trust to which the trustee was party or privy, OR to recover trust property or its proceeds retained by the trustee.
  2. When the Appellant took possession of the land in 2006, before the 6 year limit for the 2005 contract could expire, and made substantial payments and developments with the Respondent''s knowledge, the Respondent became a Constructive Trustee for the Appellant (the beneficiary) and therefore there had been a transformation of the nature of the claim from an action founded on contract to an action by a beneficiary against a trustee to recover trust property, the suit land herein being the “trust property. " Under Section 20(2) of the Limitation of Actions Act therefore, the right of the beneficiary who was the Appellant in this case, to recover the trust property (the land) was not subject to the ordinary limitation periods of the Act because trustees have a continuing obligation to hold the property for the beneficiary.
  3. I therefore find that by proving that a Constructive Trust was established, the Appellant''s counterclaim for the land was shielded by Section 20(2) of the Limitation of Actions Act effectively rendering the Respondent''s reliance on the time bar in Section 4(1) ineffective.
  4. In the case of Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) the Court of Appeal had held as follows;

‘’For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land subject to the Land Control Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.

[27] Turning to the present appeal, the learned Judge made the findings of fact in terms of paragraph 3 above and also made a finding of law that the appellant created a constructive trust in favour of the respondent.  It was not in dispute that the appellant sold a 2 acre portion of his land comprising of 2.440 Hectares to the respondent in 2008.  He gave possession of the land to the respondent who fenced the land and developed a portion of half an acre by planting trees.  The respondent paid the last instalment of the purchase price in 2010.  However, the appellant did not transfer the 2 acres to the respondent and instead caused the whole land to be registered in his name on 4th December, 2012, and filed a suit for the eviction of the respondent thereafter.  By the time the appellant caused himself to be registered as the proprietor of the whole piece of land he was a constructive trustee for the respondent and it would be unjust and inequitable to allow the appellant to retain the 2 acres that he had sold to the respondent in the circumstances of the case.’’

As we have held in essence that, the lack of the consent of Land Control Board does not preclude the court from giving effect to 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.’’

  1. It can be seen from the above decision that the Court of Appeal had held that the indicia of substantive or full payment and possession overrode the lack of Land Control Board consent by creating a Constructive Trust, further that a transaction established as a trust was exempted from the limitations of the Section 7 of the Land Control Act and from Section 20(2) of the limitations of the Limitation of Actions Act.
  2. Having found that there was a constructive trust over the parcels of land, which became an overriding interest over the land, I find that the said trust is a necessary equitable remedy to enable the Appellant obtain justice. To this effect I allow the Appeal and set aside the Judgment of the trial court which is herein substituted with an order of dismissal of the Respondent’s case in the trial Court. The Appellant’s counterclaim in the trial court is herein allowed for which he shall have costs of both the trial court suit and counterclaim as well as costs of the Appeal.

Dated and delivered via Teams Microsoft at Naivasha this 27th day of November 2025.

M.C. OUNDO

ENVIRONMENT & LAND COURT– JUDGE

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    JOHN GICHIMU KABAO VS STEPHEN ZACHARY KIMANI NJOROGE JOHN GICHIMU KABAO VS STEPHEN ZACHARY KIMANI NJOROGE