KOIDUNGU OLE SHIRA VS JULIUS L. KIPTINGOS KOIDUNGU OLE SHIRA VS JULIUS L. KIPTINGOS

JUDGEMENT

The Appellant herein is aggrieved by the Judgement and Decree of HON.ROBERT MOBISA OANDA (hereinafter referred to as “the Trial Court” in the proceedings known as KILGORIS SPM ELC CASE NO. 60 OF 2018 (hereinafter referred to as “the Trial Court proceedings”) pronounced on 20.12.2021 (hereinafter referred to as “the Trial Court Judgement”) on the following grounds; -
THAT the Learned Magistrate erred in law and fact in failing to hold that the alleged Sale transaction was null and void for lack of the Consent from the Land Control Board.
THAT the Learned Magistrate erred in law and fact in failing to hold that the Respondent was uncertain on the prayers sought in the Counter-claim.
THAT the Learned Magistrate erred in law and fact in failing to analyse the evidence properly and hence arriving at a wrong decision.
THAT the Learned Magistrate erred in law and fact to hold that the alleged Sale Agreement(s) were suspect.
THAT the Learned Magistrate erred in law and fact by holding that the Respondent had been in occupation of the suit property for over 12 years contrary to the evidence on record.
THAT the Learned Magistrate erred in law and fact by wrongly applying the doctrine of constructive trust.
THAT the Learned Magistrate erred in law and fact in failing to hold that parties are bound by the pleadings.
The Appellant therefore sought for the following orders in the present Appeal; -
That the appeal herein be allowed.
That the judgement of the Lower Court be set-aside.
That prayers sought in the Plaint be allowed and the Counter-Claim be dismissed.
Costs of this Appeal and the Lower Court be awarded to the Appellant.
The present Appeal was duly served on the Respondent and after admission, the Honourable Court directed parties to canvass the same by way of written submissions.
The Appellant duly filed his submissions on the 08.08.2023 while the Respondent filed his submissions on the 25.10.2023.
In the reported case SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 the Court observed as follows; -

“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”

In essence therefore, this Honourable Court in exercising its appellate jurisdiction is required to re-evaluate the evidence placed before the Trial Court and scrutinise the same with a view of making its own conclusions thereof.
To achieve this exercise, this Honourable Court will have to familiarise itself with the pleadings, the testimony adduced at the hearing and the evidence produced by the witnesses thereof.
To begin with, this Honourable Court will relook at the pleadings filed before the Trial Court by the parties.
The Plaintiff in the Trial Court (who is the Appellant in the present Appeal) filed a Plaint dated 04.05.2015 seeking for the following prayers against the Defendant (who is the Respondent in the present Appeal); -
Eviction of the Defendant, agents, servants, assigns or any other persons acting on behalf of the Defendant and any buildings and structures erected from all that land that is LR.NO.TRANSMARA/OSINONI/290.
Damages for trespass by the Defendants onto the Plaintiff’s land and mesne profits accrued since the date of the Defendant’s occupation.
Costs of this suit.
Any other relief that this Court deems fit to grant.
The Plaint in the Trial Court was duly served on the Defendant who opposed the same through the Amended Statement of Defence and Counter-Claim dated 23.10.2023.
The Defendant in the Trial Court sought the following Orders against the Plaintiff pursuant to the Counter-Claim filed therein; -
A declaration that the Defendant paid the full purchase price in accordance with the Sale Agreement in regard to the suit property.
An order for specific performance compelling the Plaintiff to sign a Transfer Instrument and transfer the suit property to the Defendant.
In case of non-compliance of in (b) above, the Court do issue an Order directing the Registrar to effect the orders of this Court.
Upon service of the Amended Statement of Defence dated 23.10.2023, the Plaintiff filed a Reply to the Amended Statement of Defence and a Defence to the Counter -Claim dated 15.11.2017.
In both the Reply to the Amended Statement of Defence and the Counter-claim, the Plaintiff reiterated that facts pleaded in the Plaint and put the Defendant to strict proof thereof.
After close of pleadings, the matter proceeded for hearing with the Plaintiff’s case commencing on the 27.08.2019.

APPELLANT’S CASE AT THE TRIAL COURT.

The Appellant herein was the Plaintiff’s 1^st witness at the Trial Court and was marked as PW 1.
The Appellant began his testimony by indicating that he is the registered owner of the property known as LR.NO.TRANSMARA/OSINONI/290 and produced a Copy of the Certificate of Title (PLAINTIFF EXHIBIT 1) and a copy of official search dated 09.11.2017 (PLAINTIFF EXHIBIT 2).
The Appellant then confirmed that he is familiar with the Respondent herein as he had sold some portion of his land known as LR.NO.TRANSMARA/OSINONI/290.
According to the Appellant, Respondent purchased approximately 5 acres in the year 2000 and a further 5 acres in the year 2008 making a total of 10 acres.
The Appellant denied knowledge of any Agreement For Sale made in the year 1997.
The Appellant further confirmed that an Agreement for Sale was duly prepared by Advocate Makori and the purchase price was KShs 75,000/-.
The Respondent thereafter began making payments towards the agreed purchase price in instalments and took possession of the portion sold to him in the year 2014.
Upon the Respondent taking possession of the Appellant’s property known as LR.NO.TRANSMARA/OSINONI/290, the wives to the Appellant objected to the alleged sale and wanted the Respondent to vacate the said property.
The Appellant instituted Criminal Proceedings against the Respondent in KILGORIS CRIMINAL CASE NO. 998 OF 2015 on the basis that the Agreement for Sale dated 02.06.2000 was a forgery.
According to the Appellant’s testimony, the Respondent moved into the property known as LR.NO.TRANSMARA/OSINONI/290 in the year 1997 after clashes occurred in Enanyieny when he resided.
The Respondent was then allowed to stay on the Appellant’s parcel of land known as LR.NO.TRANSMARA/OSINONI/290 for a period of time and thereafter relocated to his original home.
However, the Respondent returned back to the Appellant’s property known as LR.NO.TRANSMARA/OSINONI/290 in the year 2014 and started living on one of the Appellant’s houses therein.
The Appellant admitted that indeed the Agreements For Sale entered into in the year 2000 and 2008 were legitimate.
However, the said Agreements For Sales were not sanctioned by a Land Control Board.
Further to that, the Appellant informed the Trial Court that there has been no sub-division undertaken on the property known as LR.NO.TRANSMARA/OSINONI/290 by any licensed Surveyor.
In concluding his evidence in chief, Appellant informed the Trial Court that he was ready and willing to refund the Respondent the full purchase price and thereafter he be evicted from the portions he occupies on the property known as LR.NO.TRANSMARA/OSINONI/290.
The Appellant stated that the property known as LR.NO.TRANSMARA/OSINONI/290 was approximately 13.5 Acres.
On cross-examination, the Appellant confirmed that indeed the two Agreements For Sale were executed in the year 2000 and 2008.
Each Agreement For Sale was for a portion of 5 acres at a value of KShs 75,000/-.
The Appellant also admitted that the full purchase price was fully paid by the Respondent.
However, the Appellant stated that the Agreement For Sale 02.06.2000 was not legitimate as it had been forged.
According to the Appellant, the signature appearing on the Agreement dated 02.06.2000 was not his and the wife had also not signed the same.
The only people who had executed the said Agreement For Sale dated 02.06.2000 were the Respondent and his witness.
The Appellant reiterated that it was the forgery that resulted to report being made to police and the Respondent was charged with forcible retainer.
The Appellant further stated that both Agreements For Sale made in the year 2000 and 2008 were not sanctioned by the Land Control Board and therefore were not binding.
The Appellant stated that he is ready and willing to refund the Respondent his entire purchase price because at the time he sold the two portions of land, he was drunk.
Further to that, the Appellant informed the Trial Court that the sale transactions were to be secret.
On re-examination, the Appellant reiterated that the Respondent moved into the property known as LR.NO.TRANSMARA/OSINONI/290 in the year 2014.
Before that, the Appellant confirmed that the Respondent had temporarily lived on the property known as LR.NO.TRANSMARA/OSINONI/290 between the year 1997 and 1999.
At the end of this re-examination, the Appellant who was PW 1 was discharged from the witness stand.
The Appellant’s second witness was JAMES SOUL LESHA (PW2).
PW 2 introduced himself as a brother-in-law to the Appellant herein.
PW 2 confirmed that he is familiar with the Respondent herein.
PW 2 further stated that he has never been a witness or appended his signature on any Agreement For Sale dated 02.06.2000.
According to PW 2, the Respondent moved into the property known as LR.NO.TRANSMARA/OSINONI/290 during the clashes.
Thereafter, he came back to the property known as LR.NO.TRANSMARA/OSINONI/290 in the year 2014.
PW 2 adopted his witness statement dated 15.11.2017 as his evidence in chief.
On cross-examination, PW 2 denied ever going to the offices of Advocate Nyariki or signing the Agreement For Sale dated 02.06.2000.
PW 2 however confirmed that he knew JAMES LESHAN.
On re-examination, PW 2 reiterated that he was not a witness in any of the Agreements For Sale executed in the year 2000 and 2008.
The Appellant’s third witness was one OLERINKA KOINDUNGU (PW3).
PW 3 introduced himself as a farmer and resident of OSINONI.
PW 3 confirmed knowledge of the Appellant who is his uncle.
PW 3 sought to rely on his witness statement dated 15.11.2017 as his evidence in chief.
PW 3 stated that he was aware the Respondent had initially bought 5 acres from the Appellant and thereafter purchased a further 5 acres.
PW 3 however was not sure if the two purchases were in one joint agreement or not.
According to PW 3 recollection, the Respondent initially stayed in the property known as LR.NO.TRANSMARA/OSINONI/290 during the clashes between the Maasai and the Kisii but this stay was not long.
The Respondent then returned to the Appellant’s property known as LR.NO.TRANSMARA/OSINONI/290 for a second time on the basis that he had purchased the same.
However, the Appellant’s wives and children objected to the sale of the said land.
On cross-examination, PW 3 admitted that he visited the offices of Advocate Nyariki and signed the Agreement For Sale as a witness.
According to PW 3, he visited the offices of Advocate Nyariki twice.
PW 3 confirmed that he executed two Agreements For Sale.
However, PW 3 denied executing the Agreement For Sale dated 02.06.2000 and stated that it was a forgery.
PW 3 informed the Trial Court that after execution of the Agreements For Sale, the Respondent did not immediately move in until later.
In re-examination, PW 3 stated that the Agreements For Sale were for 5 acres each.
PW 3 reiterated that there was no Agreement For Sale for the entire 10 acres.
After this re-examination, PW 3 was also discharged from the witness box.
The Appellant’s fourth witness was MARY KIRAMATISHO SHIRA (PW4).
PW 4 introduced herself as the wife of the Appellant.
PW 4 confirmed being familiar with the Respondent herein.
PW 4 informed the Trial Court that the Respondent claims to have purchased a portion of the property known as LR.NO.TRANSMARA/OSINONI/290.
However, the purported sale transaction between the Appellant and the Respondent was not sanctioned by the family members.
PW 4 testified that sometime ago, the Respondent had sought for refuge in the property known as LR.NO.TRANSMARA/OSINONI/290 during the Maasai and Kisii clashes.
Thereafter, the Respondent left the property known as LR.NO.TRANSMARA/OSINONI/290 once the said clashes were stopped.
Later on, the Respondent returned to the property known as LR.NO.TRANSMARA/OSINONI/290 claiming that he had purchased it.
PW 4 together with the Co-wife objected to the purported sale between the Appellant and the Respondent and placed a caution of the title to the property known as LR.NO.TRANSMARA/OSINONI/290.
Thereafter, PW 4 and the other family members tried to evict the Respondent from the property known as LR.NO.TRANSMARA/OSINONI/290 but were not successful hence this suit.
According to PW 4, the sale transactions between the Appellant and the Respondent were done under the influence of alcohol and without the consent of the Appellant’s family.
PW 4 stated that there was no Land Control Board consent to sanction the purported Agreements For Sale and there is no land available for sale to the Respondent.
On cross-examination, PW 4 stated that she was the second wife to the Appellant.
However, PW 4 could not remember the year she got married to the Appellant.
PW 4 denied that there was any close relationship with the Respondent.
PW 4 was categorical that there was no land available for Sale to the Respondent herein and that is why they resisted the sale.
PW 4 informed the Trial Court that the Appellant did not inform them of his decision to sale the property known as LR.NO.TRANSMARA/OSINONI/290.
According to PW 4, when the Respondent sought refuge in the year 1997, he stayed for about 3 years and did not develop any house but stayed in the Appellant’s house.
Thereafter, the Respondent returned in the year 2014 on the basis that he had purchased a portion of the property known as LR.NO.TRANSMARA/OSINONI/290.
It is at this point that PW 4 together with the Co-wive placed the caution of the entire title of LR.NO.TRANSMARA/OSINONI/290.
PW 4 stated that the property known as LR.NO.TRANSMARA/OSINONI/290 is registered in the name of the Appellant although they should be told of any dealings therein.
PW 4 was of the view that Appellant and the Respondent were drinking friends and the Appellant would have been cheated.
There was no re-examination on PW 4 and she was discharged from the witness box and the Appellant closed his case.

RESPONDENT’S CASE.

The Respondent’s 1^st witness was the Respondent himself as DW 1.
First and foremost, the Respondent sought to rely on his witness statement dated 27.05.2015 together with the List of documents therein.
Thereafter, the Respondent started his testimony by indicating that he purchased a portion of land measuring 5 acres in the 1997 but the Agreement For Sale was actually signed on the 02.06.2000.
In the year 2000, the Respondent again bought another 5 acres from the Appellant making a total of 10 acres.
These 10 acres were all within the property known as LR.NO.TRANSMARA/OSINONI/290 owned by the Appellant.
However, in the year 2002, the Appellant again sold the same property to another person through an Agreement dated 24.11.2002.
The Respondent stated that he had been in occupation of the property known as LR.NO.TRANSMARA/OSINONI/290 since 1997.
However, when the Title Deed was issued on the 02.02.2010 in favour of the Appellant, he disowned the sale and instead instituted legal proceedings against the Respondent.
The Respondent informed the Trial Court that he is occupation with his family and therefore it would be unfair for him to be evicted from the said property which he lawfully purchased.
On cross-examination, the Respondent stated that there are two Agreements For Sale each containing 5 acres.
The Respondent admitted that he did not have the Agreement for Sale for the year 1997.
The Respondent confirmed to the Trial Court that out of the six witnesses, only two executed the said Agreement For Sale.
The Respondent further stated that there was no Land Control Board Consent relating to the said sale transaction.
On re-examination, the Respondent reiterated that he purchased 10 acres within the property known as LR.NO.TRANSMARA/OSINONI/290.
The Agreement For Sale was prepared by Advocate Nyariki and the Appellant duly executed the same.
It was agreed that the Appellant would then go and obtain the Land Control Board Consent later.
At the end of this re-examination, the Respondent was discharged from the witness box.
The Respondent’s second witness was PAUL K.MARANGA (DW2).
DW 2 introduced himself as a resident of Enoosaen and sought to rely on the witness statement recorded on the 27.05.2015 as his evidence in chief.
According to DW 2, the Appellant herein sold some land to the Respondent in the year 1997.
The Appellant who was his friend informed him that the Respondent had completed the transaction.
DW 2 stated that the land sold by the Appellant to the Respondent was 5 acres in the year 1997 and another 5 acres in the year 2000.
DW 2 further informed the Trial Court that one of the Respondent’s brother had been living on the land since 1997.
On cross-examination, DW 2 informed the Trial Court that he was not present when the 1997 Agreement For Sale was done and he is not one of the people that signed the same.
However, he was aware of the Agreement For Sale made in the year 2000 although he was not a witness therein.
According to DW 2, the problem between the Appellant and the Respondent arose in the year 2014 when the Respondent took possession and that is why this case is before Court.
On re-examination, DW 2 stated that Moses lives on the same property known as LR.NO.TRANSMARA/OSINONI/290.
DW 2 was then discharged from the witness box after this re-examination.
The Respondent’s third witness was JOSEPH TONKOIN KONCHELLAH (DW3).
DW 3 adopted his witness statement dated 27.05.2015 as his evidence in chief.
Further to that, DW 3 informed the Trial Court that there are two Agreements For Sale between the Appellant and the Respondent.
The 1^st Agreement was entered in the year 1997 while the second Agreement was signed in the year 2000.
Both Agreements For Sale were for 5 acres each making a total of 10 acres for a value of KShs 150,000/-.
On cross-examination, DW 3 stated that there were two Agreements that were signed.
The first Agreement For Sale was done in the year 1997 and he was present as a witness to the Respondent together with PAUL MARANGA who was the broker.
The Appellant on the other hand had 4 witnesses.
Both the Appellant and the Respondent were given copies of the said Agreement For Sale.
In the year 2000, DW 3 was also present when the second Agreement For Sale was executed.
However, this time the Appellant came alone and received payment.
However, the two Agreements were to be consolidated but the Agreement for the year 2000 was not signed by some witnesses.
DW 3 stated that initially, the Respondent use to stay in Shangoe but moved to Osinoni in the year 2014.
On re-examination, DW 3 confirmed that he was one of the people that signed the Agreement for Sale in 2000 and this was done in Kisii town before an Advocate of the High Court.
DW 3 was then discharged after this re-examination.
The fourth Respondent’s witness was MOSES LEDAMA KIPTINGOS (DW4).
DW 4 introduced himself as a resident of OSINONI.
Thereafter, DW 4 adopted his witness statement dated 26.04.2018 as his evidence in chief.
DW 4 stated that he is the younger brother of the Respondent herein.
According to DW 4, the Respondent purchased about 5 acres from the Appellant in the year 1997.
Thereafter, DW 4 and the Respondent moved into the portion they purchased.
In the year 2000, the Respondent purchased a second portion of land measuring approximately 5 acres from the Appellant.
In the year 2014, the Respondent moved into the portion of 10 acres which he had purchased from the Appellant.
DW 4 stated that he has been in occupation of the 10 acres purchased by the Respondent without any problem from the Appellant herein.
On cross-examination, DW 4 informed the Trial Court that the area chief who was to be a witness but passed away.
DW 4 reiterated that indeed he moved into the Appellant’s property in the year 1997 and built a house therein.
DW 4 informed the Trial Court that before relocating to OSINONI, he was residing in SHANGOE.
DW 4 denied that he resides in OLE-SOINE or SOINE.
Further to that, DW 4 denied that he resides in the Appellant’s home.
DW 4 stated that he does not have any case against the Appellant at the Adjudication office.
DW 4 denied that he moved into the property known as LR.NO.TRANSMARA/OSINONI/290 in the year 2004.
According to DW 4, he was aware of the Agreement For Sale made in the year 1997 and not aware of Agreement For Sale done in the year 2000.
At the end of the cross-examination, there was no re-examination and DW 4 was discharged from the witness box and the Respondent closed his case.
Thereafter, the parties were directed to file their submissions with the Appellant filing his submissions on the 14.09.2021 while the Respondent filed his submissions on 07.09.2021.
This Honourable Court has indeed perused the pleadings filed in the Trial Court, the evidence adduced at the hearing and the evidence produced before it as well as the submissions by the parties and hereby identify the following issues for determination; -

ISSUE NO. 1- WERE THE AGREEMENT FOR SALE ENTERED INTO IN THE YEAR 2000 & 2008 LAWFUL AND BINDING BETWEEN THE APPELLANT AND THE RESPONDENT?

ISSUE NO. 2- WAS THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000 BETWEEN THE APPELLANT AND RESPONDENT LAWFUL AND BINDING BETWEEN THE APPELLANT AND THE RESPONDENT?

ISSUE NO. 3- IS THE RESPONDENT ENTITLED TO THE 10 ACRES PROVIDED FOR IN THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000?

ISSUE NO.4 – DOES THE LACK OF THE LAND BOARD CONSENT IN RELATION TO THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000 INVALIDATE THE ENTIRE TRANSACTION?

ISSUE NO. 5- IS THE APPELLANT ENTITLED TO THE ORDERS SOUGHT IN THE PLAINT DATED 04.05.2015?

ISSUE NO.6- IS THE RESPONDENT ENTITLED TO THE ORDERS SOUGHT IN THE COUNTER-CLAIM DATED 23.10.2017?

ISSUE NO. 7- WHO BEARS THE COSTS OF EITHER THE PLAINT OR THE COUNTER-CLAIM HEREIN?

The Honourable Court having duly identified the above issues for determination, the same will now be discussed and determined as below; -

ISSUE NO. 1- WERE THE AGREEMENT FOR SALE ENTERED INTO IN THE YEAR 2000 & 2008 LAWFUL AND BINDING BETWEEN THE APPELLANT AND THE RESPONDENT?

The first issue for determination is whether or not the Agreements For Sale made in the year 2000 and 2008 are valid and binding on the Appellant and the Respondent.
Although the Appellant was replying of these two Agreements For Sale in his Plaint before the Trial Court, he did not produce the same for the Trial Court’s consideration.
However, the Appellant in his Plaint and in particular Paragraph 4 and 5 admitted that indeed there existed two Agreements For Sale with the Respondent for a portion of 10 acres within the property known as LR.NO.TRANSMARA/OSINONI/290.
The Appellant further admitted under Paragraph 5 that full purchase price for the total 10 acres was completed way back in the year 2008.
Clearly from the admissions hereinabove, which have also been collaborated by the Appellant during his testimony at the Trial Court confirms that indeed, there was a binding and lawful agreement for the sale of 10 acres within the property known as LR.NO.TRANSMARA/OSINONI/290 to the Respondent.

ISSUE NO. 2- WAS THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000 BETWEEN THE APPELLANT AND RESPONDENT LAWFUL AND BINDING BETWEEN THE APPELLANT AND THE RESPONDENT?

The second issue for determination is the consolidated Agreement For Sale dated 02.06.2000 between the Appellant and the Respondent.
According to the Respondent, at the time of preparing the second Agreement For Sale in the year 2008, the Advocate acting on behalf of both parties herein prepared a consolidated Agreement For Sale for the entire 10 acres which was then signed in the year 2008 but then dated 02.06.2000.
The Appellant on the other hand is denying that he ever executed this Agreement of 02.06.2000 and has deemed it a forgery on the part of the Respondent and the Advocate.
DW 4 in his testimony confirmed that he was present during the preparation and execution of both Agreements For Sale executed in the 2000 and 2008.
In the testimony of DW 4, the purpose and intention of preparing and executing the Agreement For Sale dated 02.06.2000 was to have the entire portion of 10 acres within one Agreement For Sale.
DW 4 further stated that on the material day when the Agreement For Sale dated 02.06.2000 was prepared and executed, the Appellant was alone and that is why none of his witnesses executed their part.
According to the evidence of PW 3, who was the Appellant’s witness, he admitted that indeed the Respondent had purchased a two portions of land measuring 5 acres each making a total of 10 acres.
What PW 3 could not ascertain for sure is whether there is one Agreement For Sale for the entire 10 acres purchased by the Respondent.
Considering the facts hereinabove, this Honourable Court is of the view that the Agreement For Sale dated 02.06.2000 was indeed prepared and executed in the year 2008.
However, the date of 02.06.2000 was affixed on the said Agreement For Sale so that it could cater for the period from when the first Agreement For Sale was undertaken to when the second portion of 5 acres was purchased in the year 2008.
In other words, the Agreement For Sale dated 02.06.2000 was a replacement of the initial Agreement For Sale entered into in the year 2000 and further included the portion of 5 acres purchased in the year 2008.
Be as it may, the Appellant is denying that he executed the Agreement For Sale dated 02.06.2000 and the same is a forgery.
Unfortunately, the Appellant herein did not present any evidence to proof the alleged forgery.
This Honourable Court expected the Appellant to have presented an expert report from either a Government Document Examiner and/or a private licensed document examiner to affirm the said allegations.
The Appellant could have in the alternative called the Advocate who prepared the same as his witness to confirm that this Agreement was a forgery.
In essence therefore, this Honourable Court is of the considered view that the allegations of forgery were not proved and the Agreement for Sale dated 02.06.2000 is legitimate and binding between the Appellant and the Respondent.

ISSUE NO. 3- IS THE RESPONDENT ENTITLED TO THE 10 ACRES PROVIDED FOR IN THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000?

The third issue for determination is whether the Respondent is entitled to the 10 acres contained in the Agreement For Sale dated 02.06.2000 or not.
As earlier stated, the Appellant in his own pleadings and evidence confirms that he actually sold a total of 10 acres to the Respondent herein.
The purpose of entering into the two Agreements For Sale in the year 2000 and subsequently 2008 was to alienate the Appellants rights over the property known as LR.NO.TRANSMARA/OSINONI/290 to the Respondent herein.
Such an alienation includes the handing over possession of the said portion of land measuring 10 acres within LR.NO.TRANSMARA/OSINONI/290 in favour of the Respondent.
The Appellant having duly admitted in his pleadings and testimony that the Respondents fully met his end of the bargain, then it goes without saying that the Appellant needs to grant the Respondent vacate possession of the portion measuring 10 acres within the property known as LR.NO.TRANSMARA/OSINONI/290.
That is indeed the intention and objective of the Agreements For Sale entered into in the year 2000 and 2008 of which full purchase price has been settled.
In essence therefore, this Honourable Court hereby makes a finding that the Respondent is entitled to occupation, possession and use of the 10 acres within the property known as LR.NO.TRANSMARA/OSINONI/290.

ISSUE NO.4 – DOES THE LACK OF THE LAND BOARD CONSENT IN RELATION TO THE CONSOLIDATED AGREEMENT FOR SALE DATED 02.06.2000 INVALIDATE THE ENTIRE TRANSACTION?

The fourth issue for determination is whether or not the two Agreements For Sale entered into in the year 2000 and 2008 were invalid because they were not sanctioned by a Land Control Board Consent.
The issue of the Land Control Board Consent has been raised by the Appellant himself and PW 4 who is the 2^nd wife to the Appellant.
Their position is that in the absence of the Land Control Board Consent to both the Agreements for Sale made in 2000 and 2008, then both Agreements are null and void.
Section 6 of the Land Control Board Act provides as follows; -
Each of the following transactions that is to say; -
The sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a Land Control area;
………………………………………………………………………

Is void for all purposes unless the land control Board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

First and foremost, the issue of what is the legal implication of an Agreement For Sale of Agricultural land without the sanction of the Land Control Board has been discussed extensively in our jurisdiction.
In case of MACHARIA MWANGI MAINA & 87 OTHERS-VERSUS- DAVIDSON MWANGI KAGIRI (2014) eKLR, the Court of Appeal was of the view that possession of land by a purchaser creates an overriding interest in favour of the said Purchaser.
As to whether a purchaser can claim for an overriding interest or constructive trust against a Vendor under the Registered Land Act, Cap 300 (now Repealed), the issue was discussed in two case namely MUTSONGA-VERSUS- NYATI (1984) KLR and KANYI-VERSUS- MUTHIORA (1984) KLR and the Court were of the view that the equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of section 163 of the Registered Land Act, which provided for the application of the common law of England as modified by equity.
The Court cited with approval the authority of YAXLEY-VERSUS- GOTTS & ANOTHER (2000) Ch 162 which stated as follows; -

“An oral agreement for sale of property created an interest in the property even though void and unenforceable as a contract; but the oral agreement was still enforceable on the basis of a constructive trust or proprietary estoppel.

In the instant case, it was the respondent who put the appellants in possession of the suit property not as licensees but with the intention that he was to transfer individual plots purchased by them.

The respondent went ahead and received the purchase price. We are of the considered view that the doctrines of proprietary estoppel and constructive trust are applicable and the respondent cannot renege.

The transaction between the parties is to the effect that the respondent created a constructive trust in favour of all persons who paid the purchase price.

We are of the considered view that a constructive trust relating to land subject to the Land Control Act is enforceable.

Our view on this aspect is guided by the Overriding Objectives of this Court and the need to dispense substantive and not technical justice.”

In another case of WILLIAM KIPSOI SIGEI-VERSUS- KIPKOECH ARUSEI & ANOTHER (2019) eKLR, the Court of Appeal observed as follows; -

“We come to the conclusion that in the circumstances of this case the equitable doctrines of constructive trust and proprietary estoppel were applicable and enforceable in regard to land subject to the Land Control Act. We therefore agree with the learned judge of the Environment and Land Court that despite the lack of consent of the Land Control Board, the doctrine of constructive trust applied to the agreement between the appellant and the 1^st respondent”.

The Honourable Justice Apaloo JA in the case of GABRIEL MAKOKHA WAMUTOKA-VERSUS- SYLVESTER NYONGESA DONATI (1987) eKLR, expressly himself as follows; -

“To think such a thing could be possible offends against one’s idea of propriety and fairness. I believe that sound reasons of public policy motivated the parliament of Kenya to seek to prevent the alienation of agricultural land to non-Kenyans or to Kenyans without the interposition of the judgment of an independent board. Section 6 of the Act lays down the sanction for violation of the Act in absolute terms. An alienation made in transgression of the Act is ordained to be “void for all purposes”. Strong words indeed! But one may be permitted to doubt whether the Act as judicially construed and applied, meets the ends of justice or is a true reflection of the legislative will.”

Lastly, in the case of KIPLAGAT KOTUT-VERSUS- ROSE JEBOR KIPNGOK (2019) eKLR, the Court of Appeal made the pronouncing observation as regards the application of the Land Control Act; -

“We hasten to state that the Land Control Act… was never intended to be an instrument or statute for unjust enrichment. It was never meant to exempt a mala fide vendor from his contractual obligations.

The statute comes to the aid of persons who act in good faith without taking undue advantage of the other party. It is not a statute aimed at aiding unconscionable conduct between the parties.

It is in this context that the doctrine of constructive trust comes into play to restore property to the rightful owner and to prevent unjust enrichment. It prevents unconscionable conduct and ensures one party does not benefit at the expense of another.”

Turning to the present Appeal, it is not in dispute that the Appellant entered into two Agreements For Sale for a portion of 10 acres within the property known as LR.NO.TRANSMARA/ISONINO/290 with the Respondent.
Pursuant to the said Agreements For Sale, the Respondent took possession in the year 2014 and has been in occupation of the same up to date.
The Appellant admits that the full purchase price for the entire 10 acres sold to the Respondent was fully paid.
Clearly therefore, even in the absence of the Land Control Board Consent, the Respondent herein is entitled to a constructive trust against the Appellant’s title known as LR.NO.TRANSMARA/ISONINO/290.
The Appellant’s attempt to negate the lawful sale agreements by an offer to refund the purchase price to the Respondent after a period of 24 years is in bad faith and can not be entertained by this Honourable Court.
In conclusion therefore, the Respondent has been able to establish a constructive trust on the Appellant’s property known as LR.NO.TRANSMARA/ISONONI/290 capable of being enforced by this Honourable Court through both registration and possession.

ISSUE NO. 5- IS THE APPELLANT ENTITLED TO THE ORDERS SOUGHT IN THE PLAINT DATED 04.05.2015?

Based on the determination in Issue No. 4 hereinabove, this Honourable Court is of the considered view that the Plaint dated 04.05.2015 by the Appellant is not merited and should be dismissed.

ISSUE NO.6- IS THE RESPONDENT ENTITLED TO THE ORDERS SOUGHT IN THE COUNTER-CLAIM DATED 23.10.2017?

On the other hand, the Respondent having duly establishment of a constructive trust against the Respondent’s property known as LR.NO.TRANSMARA/ISONONI/290, then the Counter-Claim filed on the 23.10.2017 is merited and hereby succeeds.

ISSUE NO. 7- WHO BEARS THE COSTS OF THE PRESENT APPEAL?

Lastly, costs usually follow the event.
In this instance, the Appellant has not been successful in the Appeal and will now bear the costs of the same.

CONCLUSION

In conclusion therefore, this Honourable court hereby makes the following Orders as regards the Memorandum of Appeal dated 12.01.2022; -
THE MEMORANDUM OF APPEAL DATED 12^TH OF JANUARY 2022 BE AND IS HEREBY DISMISSED FORTHWITH.
THE JUDGEMENT AND DECREE PRONOUNCED ON THE 20.12.2021 BY THE HONOURABLE ROBERT MOBISA OANDA IN THE PROCEEDINGS KNOWN AS KILGORIS SPM ELC CASE NO.60 OF 2018 BE AND IS HEREBY UPHELD.
THE APPELLANT WILL BEAR THE COST OF THIS APPEAL.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 13^TH OF MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE APPELLANT: MR. MUTAI H/B MORINTAT

ADVOCATE FOR THE RESPONDENT: MR. NDOLO H/B KITHI