Introduction
Sammy Seguton kibet (hereinafter referred to as the appellant) filed a claim in the lower Court against Leban Chepsergon Cherogony, Christine J Cherogony and John Cherogony (hereinafter referred to as the respondents.). According to the appellant , the 1st respondent was a beneficiary of the estate of the late Dickson Ossen Arap Cherogony whereas the 2nd and 3rd respondents were administratrix and administrator respectively of the estate of the said late Dickson Ossen Arap Cherogony.
The appellant claimed to be the legal and or the beneficial owner of Kampi ya Moto/Kampi ya Moto Block1/101 by virtue of having purchased the same from the 1st appellant through a sale agreement dated 8th November 2011. The said property known as Kampi Ya Moto/Kampi Ya Moto Block 1/101 formed part of the estate of the late Dickson Ossen Arap Cherogony to whose estate the first respondent herein (Laban Chepsergon Cherogony) is and/or was a beneficiary. The suit property upon succession devolved to Laban Chepsergon Cherogony the 1st respondent herein vide a Certificate of Confirmation of Grant issued at Nairobi on the 3rd day of August 2005.
On the basis is of the said certificate of confirmation of Grant dated 3rd August 2005, the first respondent sold to the appellant part of his share of the estate of the deceased being property known as Kampi ya Moto/Kampi ya Moto Block. The second and third respondents on the other hand as the administratrix and administrator respectively of the estate of the late Dickson Ossen Arap Cherogony were allocated their respective shares of the Estate of the late Dickson Ossen Arap Cherogony.
That notwithstanding, the second and third respondents without any color of right have resorted to harassing the appellant and have refused to effect transfer the property, hence prejudicing his proprietary rights over property known as Kampi Ya Moto/Kampi Ya Moto Block 1/101, which he legally bought from first respondent.
The appellants claim against the respondents in the lower court was
an order of permanent injunction to restrain the respondents by themselves, their servants, agents, cronies, relatives and/or employees from alienating, cultivating, disposing, trespassing unto and/or interfering in any manner with the appellants parcel of land known as Kampi ya Moto/Kampi ya Moto Block 1/101 measuring approximately 6.07 Hectares or thereabout and an order compelling the respondents to transfer property known as Kampi ya Moto/Kampi ya Moto Block 1/101 to the appellant. The appellant ultimately prayed for costs of the suit.
The 1st respondent filed a defence admitting having entered into a sale agreement with the appellant but denied the allegations that the appellant has any legal interest or beneficial interest in the property. No interest was transferred to the appellant.
The 2nd and 3rd respondents filed a joint statement of defence stating that the parcel of land was registered in the names of Dickson Ossen Arap Cherogony. The property was not delivered to the 1st respondent and that the deceased has prohibited transmission of the property to any person until after the expiry of 20 years. No consent of the land Control Board had been obtained by the respondents. They state that the appellant suit is without merit.
Evidence on Record
When the matter came for hearing on 14th June 2022, the appellant, Sammy Seguton Kibet asked the court to adopt his statement dated 17th February 2022 as evidence in chief which was done. In a nutshell, the appellant states and he is related to the respondent as a cousin. The 1st respondent’s father was deceased but succession had been completed and what was pending was transmission of the property to the 1st respondent. Instead of waiting for transmission the 1st respondent decided to sell the property to the appellant at a consideration of 3,000,000 which he paid and took possession of the property in 2011. He buried his niece on the land. On cross examination he reiterates that he paid Kshs3,000,000 the last payment being 20th September 2012.
Mr Laban Chepsergon Cherogony, the 1st respondent also asked the court to adopt his statement dated 28th June 2021 as evidence in chief which the court did. He states that he sold the land which was part of his inheritance and that he was a beneficiary. He states that he had a pressing issue and therefore sold the land to the appellant. He confirmed having been paid the purchase price but he converted the sale into a lease but does not state the terms of the lease.
Determination by the Lower Court
The learned magistrate having considered the evidence on record and rival submission rightfully found the following issues ripe for determination
1. Whether the suit is statute barred.
2. Whether the sale was void for failure to obtain consent of Land Control Board.
3. Who should bear costs?
On the 1st issue the Learned Magistrate found that the parties entered into agreement on 8th November2011, the suit was filed on 17th February 2020. However, the matter involves contractual issues and occupation of the land and therefore the suit is not statute barred. On the issue of the consent of the Land Control Board the Learned Magistrate found that section 6(1) and 8(1) of the Land Control Act are very clear and devoid of any ambiguity and coached in mandatory terms that the consent of the Land Control Board must be obtained. The learned Magistrate found that parties failed to adhere to section 6(1) and 8(1) of the Land Control Act Cap 302 Laws of Kenya hence the transaction was void.
The court found that the appellant was in possession of the suit land hence the presumption that the sum was paid in full and ordered that the 1st respondent do refund a sum of Kshs 3,000,000 paid by the appellant.
The Appeal
The appellant was dissatisfied with the judgment hence appealed to this court on grounds that: -
i. The Learned trial Magistrate erred both in fact and law by holding that failure to apply for and get the Land Control Board Consent within 6 months rendered the transaction void yet the superior courts have settled the law regarding the same as the court ought to have looked at the reasons for the failure to get the Land Control Board Consent which was chiefly occasioned by lack of cooperation and collaboration by the very Respondents.
ii. The learned trial Magistrate erred both in fact and law by centering her decision on one issue i.e. Lack of the Land Control Board Consent yet the appellant had pleaded other issues including but not limited to the existence of sale agreement between the Appellant and the 1st Respondent; the appellant occupation and the extensive developments done on the suit property with the knowledge and permission of the Respondents; and specific performance.
iii. The Learned trial magistrate erred both in fact and law by failing to appreciate the Appellant's pleadings, testimony, un-contradicted evidence and the extensive submissions which all point to the fact that the Appellant is the owner of the land parcel title number Kampi ya Moto/Kampi ya Moto Block 1/101 Having purchased the same from the 1st Respondent and thereafter gained possession and has done there at major developments.
iv. The Learned trial magistrate erred both in law and fact by ordering a refund of the purchase price only yet the Appellant has done extensive developments on the suit property which has increased the Value of the suit property to a tune of more than Kenya Shillings 70 Million and abiding by the impugned judgment would constitute unjust enrichment on the part of the Respondents.
v. Learned trial magistrate erred both in fact and law by failing to appreciate the Legal principles of Constructive trust and proprietary estoppel which the Superior courts have clarified and settled the law in our jurisdiction and thus arrived at an erroneous conclusion and or decision.
vi. The Learned trial magistrate erred both in fact and law by ignoring the Respondents' admission that indeed the Appellant purchased the land parcel title number Kampi Ya Moto/Kampi Ya Moto Block 1/101 from the 1st Respondent and the only issue that was pending was for the Respondents to hand over completion documents to the Appellant.
vii. Learned trial magistrate erred both in fact and law by proceeding to the decision in the case of David Sironga Ole Tukai vs Francis Arap & 2 Others (2014) EKLR whose facts are distinguishable from the appellant’s case and ignored the decision in Aliaza v Saul (Civil Appeal 134 of 2 017) [2022] KECA 583 (KLR) (24 June 2022) (Judgment) and many others whose facts are in tandem with the appellant's case.
viii. The learned trial magistrate erred both in fact and law by ordering that each party to bear their own costs without any justification and it's now trite law that costs follow the event.
The appellant prays that this court does set aside the lower court judgment and decree of 13.06.2024 and substituting thereat with an order and/or decree allowing the suit with costs to the appellant.
The Cross Appeal
The respondents filed a cross appeal on grounds that:-
1. The Learned trial Magistrate erred in law and fact by failing to dismiss the Appellant's suit (with costs) after finding that the sale transaction between the Appellant and the 1st Respondent was void.
2. The Learned trial Magistrate erred in law and fact by granting the relief of refund of the purchase price with interest thereon against the 1st Respondent despite there being no pleading and/or prayer in that regard and by so doing contravening the principle that pleadings bind a Court in the same manner as the parties before it.
3. The Learned trial Magistrate erred in law and fact by awarding interest from the date of the sale transaction, or at all, on the irregular award of refund of the purchase price despite there being no allegation, pleading or finding of fault on the part of the 1st Respondent regarding the failure to apply for or obtain the consent of the relevant Land Control board, or at all.
4. By making the irregular relief of refund of the purchase price with interest against the 1st Respondent, the learned trial magistrate erred in law and fact by failing to consider the fact that the Appellant had at the date of judgment, had possession and gainful use of the subject land for over 12 ½ years.
5. The learned trial Magistrate erred in law and fact by finding that the appellant paid the purchase price in full without any evidence to that effect and/or against the weight of overwhelming evidence to the contrary.
6. The learned trial magistrate erred in law and fact by failing to find that the appellant’s suit was wholly based on contract and/or that it was statute- barred.
7. The learned trial magistrate erred in law and fact by failing to find that the Appellant’s suit did not establish any cause of action against the 2nd and 3rd respondents and/or not establish any cause of action against the 2nd and 3rd Respondents and/or that due to want of privity of contract, the reliefs sought could not be awarded as against the 2nd and 3rd defendants.
8. The learned trial Magistrate erred in law and fact by failing to dismiss the Appellant’s suit against the 2nd and 3rd defendants will costs.
The respondent prays that that the appeal be dismissed with costs and the cross-appeal be allowed. The award of an order of refund of the purchase price to the Appellant again 1st Respondent with interest thereon, or at all, as made by the Honorable Y. I Khatambi, Principal Magistrate, vide the judgment delivered on 13th June 2024 in Nakuru Chief Magistrate’s Court Environment and Land court Case No.26 of 2020 be set aside or varied and in its place judgment be entered dismissing the suit against the Respondents/Cross appellant with costs.
Rival Submissions
Counsel for the Appellant filed submissions dated 28th October, 2025 and identified the following issues for determination:
a. Whether failure to obtain a consent from the Land Control Board renders the sale agreement between the Appellant and the 1st Respondent/Cross-Appellant void?
b. Whether the Appellant is the beneficial owner of the suit property hence the Respondents/Cross-Appellants should transfer the land to him?
c. Whether the suit was wholly based on contract and/or that it was statute-barred?
d. Whether the Appellant’s suit established a cause of action against 2nd and 3rd Respondents/Cross-Appellants?
e. Whether the Appellant is entitled to a refund of the purchase price and interest accruing thereon?
f. Who should bear the costs?
On the first issue, counsel submitted that the 1st Respondent and the Appellant entered into a binding agreement whereby the 1st Respondent agreed to sell the parcel of land known as KAMPI YA MOTO/KAMPI YA MOTO BLOCK 1/101 in exchange for payment by the Appellant. It was counsel’s submission that when the Appellant entered into the suit parcel of land in the year 2011, a constructive trust in his favour was created in respect of the land. Counsel submitted that the Appellant has already invested time and resources in the transaction and is entitled to the land he paid for. Counsel relied on the authorities namely, Kiruga vs Kiruga & Another [1988] KLR 348, Kamau vs Mungai & Another [2006] 1 KLR 150, Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri [2014] eKLR, Aliaza vs Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR), Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, William Kipsoi Sigei vs Kipkoech Arusei & another [2019] eKLR and David Sironga Ole Tukai vs Frnacis Arap Muge & 2 others [2014] eKLR.
On the second issue, counsel submitted that the 1st Respondent who was the beneficiary of the suit parcel of land and had capacity to sell the said land when the grant had already been confirmed. Counsel submitted that there is a certificate of grant dated 3rd August, 2005 which shows that the 1st Respondent gets the whole share of parcel number KAMPI YA MOTO/KAMPI YA MOTO BLOCK 1/101. Counsel submitted that the 1st Respondent was the legal owner of the suit parcel and he therefore had capacity to sell the property. Counsel relied on Sections 9 (1b), 10 and 83 (g) of the Law of Succession Act.
On the third issue, counsel submitted that the trial magistrate correctly found that the Appellant’s claim was a land claim and not a mere contractual dispute. Counsel submitted that the claim was properly anchored on ownership and possession of land and was filed within the limitation period. On the fourth issue, counsel submitted that the Appellant’s suit established a cause of action against the 2nd and 3rd Respondents against whom the remedies sought by the Appellant may be awarded.
On the fifth issue, counsel submitted that the issue of refund of the purchase price does not arise as the transaction between the Appellant and the 1st Respondent was valid and the Appellant’s primary remedy remains specific performance which is the transfer of the suit parcel of land. On the sixth issue, counsel relied on Section 27 (1) of the Civil Procedure Act and asked the court to award the Appellant the costs of the suit. Counsel asked the court to find that the Appellant has proved his case and grant the orders sought with costs.
Counsel for the Respondents filed submissions dated 11th December, 2025 and identified the following issues for determination:
a. Whether the sale comprised in the agreement dated 8th November, 2011 is void for all purposes for failure to apply for and/or obtain consent of the relevant Land Control Board?
b. Whether the Appellant’s claim was statute barred?
c. Whether the order of refund of the purchase price could properly issue?
d. Whether any cause of action was proved against the 2nd and 3rd Respondents?
e. What are the appropriate orders to make?
f. Who should bear the costs of the appeal?
On the first issue, counsel submitted that the sale of the subject land as set out in the agreement dated 8th November, 2011 is void for all purposes for want of an application for and/or consent of the relevant Land Control Board. Counsel relied on Sections 6 (1) and 8 (1) of the Land Control Act and the following cases: David Sironga Ole Tukai vs Francis Arap Muge & 2 others [2014] eKLR, George Chayuga Aliaza vs Zephaniah Khisa Saul [2022] KECA 583 (KLR), Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, Virginia Ciamati Murage & Another vs Stanley Advane Kirimi [2021] eKLR and William Kipsoi Sigei vs Kipkoech Arusei & Another [2019] eKLR.
On the second issue, counsel submitted that the ownership and occupation of land are in law not qualities that automatically render a suit or cause of action timeous. Counsel submitted that assuming settlement of the purchase price was proved, which is not the case, this being a case for specific performance and there being no other obligation pending on the part of the Appellant, the Appellant’s perceived cause of action arose the moment he cleared the purchase price in 2012.
Counsel submitted that for the Appellant’s suit to have been valid, it ought to have been filed in 2018 and the suit was filed on 18th February, 2020 hence the Appellant’s suit was statute barred. Reliance was placed on the case of George Muturi Mungai vs Francis Mbugua Giathi [2012] eKLR and Dennis Nyandu vs Francis Aburi Oyaro [2021] eKLR.
On the third issue, counsel submitted that the relief of refund of the purchase price of any part thereof was not available for the Court to grant as the Appellant never pleaded or sought the same and the Respondent did not lead evidence or submit on the issue. Reliance was placed on the case of I.E.B.C & Another vs Stephen Mutinda Mule & 3 others [2014] eKLR.
On the fourth issue, counsel submitted that an order for specific performance cannot issue as a party must show that he has discharged or is willing ready and able to discharge all his obligations thereunder. Counsel submitted that the Appellant failed to show that he discharged his obligations. Counsel went on to submit that an order of specific performance cannot issue as against the 2nd and 3rd Respondents due to lack of privity of contract. Counsel relied on the cases of Thrift Homes Limited vs Kays Investment Limited [2015] eKLR and Aineah Liluyani Njirah vs Agha Khan Health Services [2013] eKLR.
On the fifth and sixth issue, counsel relied on Section 27 of the Civil Procedure Act and asked the court to allow the appeal and award costs to the Respondents.
1. Analysis and Determination
I have considered the rival submissions by learned counsel and examined the Record of Appeal.
As this is a first appeal, it is my duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co., [1968] EA 123, thus:
2. “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 due 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 that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).”
The following issues are ripe for determination:-
i. Whether failure to obtain the consent of the Land Control Board makes a sale transaction void and whether payment of consideration and occupation for a long time constituted constructive trust and property estoppel.
ii. Whether the relief of refund plus interest was properly considered by the Learned Magistrate.
iii. Whether the suit was statute barred.
iv. Who to bear costs of the appeal and the suit.
On the first issue as to whether failure to obtain consent of the Land Control Board was fatal to the land sale transaction and whether payment of consideration and occupation for a long period of time constituted constructive trust and property estoppel, this court observes that it is the general rule under Section 6(1) of the Land Control Act, Cap 302 Laws of Kenya that consent from the Land Control Board (LCB) should be obtained in any transaction revolving on agricultural land in Kenya. Courts have consistently held that without LCB consent, transactions such as sale, transfer, lease, mortgage, partition, or division of agricultural land within a land control area are null and void. This means the agreement is unenforceable, and no court can order specific performance. However, where a party has paid the whole purchase price as was in this case and has been put in possession and has substantially developed the property, the courts are hesitant to apply this provision to the letter because it would be unfair to the buyer to allow the seller to receive the money from the buyer and to re-take the land as happened in this case.
The appellant rightly cites the case of Macharia Mwangi Maina and 87 others V Davidson Mwangi Kagiri(2014) Eklr where the court of Appeal faced with the same issue, held:-
“It is our considered view that the respondent created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the 240 plots. In Mwangi and another –vs – Mwangi (1986) KLR 328, it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 126 (1) of the Registered Land Act is merely permissive and not mandatory. In Mutsonga – vs- Nyati (1984) KLR 425 and Kanyi – vs- Muthiora (1984) KLR 712, it was held 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 provides for the application of the common law of England as modified by equity.
In Yaxley – vs- Gotts and Another, (2000) Ch 162, it was held that 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. As Lord Bridge observed in Llyods Bank Plc – vs- Rosset, (1991) 1 AC 107,132, a constructive trust is based on “common intention” which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the claimant. In the instant case, there was a common intention between the appellants and the respondent in relation to the suit property. Nothing in the Land Control Act prevents the claimants from relying upon the doctrine of constructive trust created by the facts of the case. The respondent all along acted on the basis and represented that the appellants were to obtain proprietary interest in the suit property. Constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. As was stated by Lord Reid in Steadman – vs- Steadman (1976) AC 536, 540,
“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable”.
As to the consent of the Land Control Board, in Mwangi and another – vs- Mwangi, (1986) KLR 328, it was held that the creation of a trust over agricultural land situated in a land control area, does not constitute any “other disposal or dealing” with the land within the meaning of Section 6 (1) (a) of the Land Control Act and therefore the consent of the local Land Control Board is not required.
This position had earlier been applied in the case of Gatimu Kinguru – vs- Muya Gathangi (1976) KLR, 253 where it was stated:
“The creation of a trust over agricultural land in a land control area does not constitute an “other disposal of or dealing” for the purpose of Section 6(1) of the Land Control Act and, therefore, does not require the consent of the local Land Control Board..”
The upshot of the above is that the transaction between the appellant and the 1st respondent did not require the consent of the land control Board as it amounted to an implied or constructive trust as the 1st respondent sold his share to the appellant and allowed him to take possession and develop the property. To this end, I do find that the learned magistrate erred in finding that the transaction was void for failure to adhere to Section 6(1) and 8(1) of the Land control Act Cap 302 Laws of Kenya.
On the issue as to whether the appellant was a beneficial owner of the property, this court finds that though the appellant was not the registered owner of the property, he was a beneficial owner having paid the purchase price and having been given possession of the same. The certificate of Confirmation of grant shows that the 1st respondent should get the whole share of the suit-land which land he has sold to the appellant. After the confirmation of grant, the 1st respondent became the legal owner of the suit land and therefore cannot hide behind the administritrix and Administrator of the estate of the deceased. He should transfer the property to the appellant. The argument by the 2nd and 3rd respondents that the deceased had indicated that no transfer was to be made to 3rd parties until the lapse of 20 years has no basis in terms of an oral will.
On the issue as to whether the appellants claim was statute barred, this court finds that the claim was based on constructive and implied trust after a long period of possession and therefore the learned magistrate properly held that the claim was a land claim and not a mere contractual dispute and therefore not time barred.
On the issue of refund, having found that the appellant was entitled to the suit land under constructive and implied trust, he is not entitled to a refund of the purchase price as the 1st respondent is entitled to keep the purchase price whereas the appellant should keep the suit property. The learned Magistrate therefore erred in ordering for a refund of the purchase price.
Ultimately, this court allows the appeal in terms that the lower court judgment and decree of 13.06.2024 is set aside and substituted with an order and/or decree allowing the suit, thus an order of permanent injunction is granted to restrain the respondents by themselves, their servants, agents, cronies, relatives and/or employees from alienating, cultivating, disposing, trespassing unto and/or interfering in any manner with the appellants parcel of land known as Kampi ya Moto/Kampi ya Moto Block 1/101 measuring approximately 6.07 Hectares or thereabout and further, I do grant an order compelling the respondents to transfer property known as Kampi ya Moto/Kampi ya Moto Block 1/101 to the appellant. Having received the purchase price from the appellant put him in possession of the suit property but refused to transfer the suit land to the appellant, the respondents shall bear the costs of the suit before the Magistrates’ Court and the costs of this appeal. The appellant to be put back in possession within the next 30 days. The cross appeal has no legs to stand on and is dismissed with costs.
Sammy Seguton kibet (hereinafter referred to as the appellant) filed a claim in the lower Court against Leban Chepsergon Cherogony, Christine J Cherogony and John Cherogony (hereinafter referred to as the respondents.). According to the appellant , the 1st respondent was a beneficiary of the estate of the late Dickson Ossen Arap Cherogony whereas the 2nd and 3rd respondents were administratrix and administrator respectively of the estate of the said late Dickson Ossen Arap Cherogony.
The appellant claimed to be the legal and or the beneficial owner of Kampi ya Moto/Kampi ya Moto Block1/101 by virtue of having purchased the same from the 1st appellant through a sale agreement dated 8th November 2011. The said property known as Kampi Ya Moto/Kampi Ya Moto Block 1/101 formed part of the estate of the late Dickson Ossen Arap Cherogony to whose estate the first respondent herein (Laban Chepsergon Cherogony) is and/or was a beneficiary. The suit property upon succession devolved to Laban Chepsergon Cherogony the 1st respondent herein vide a Certificate of Confirmation of Grant issued at Nairobi on the 3rd day of August 2005.
On the basis is of the said certificate of confirmation of Grant dated 3rd August 2005, the first respondent sold to the appellant part of his share of the estate of the deceased being property known as Kampi ya Moto/Kampi ya Moto Block. The second and third respondents on the other hand as the administratrix and administrator respectively of the estate of the late Dickson Ossen Arap Cherogony were allocated their respective shares of the Estate of the late Dickson Ossen Arap Cherogony.
That notwithstanding, the second and third respondents without any color of right have resorted to harassing the appellant and have refused to effect transfer the property, hence prejudicing his proprietary rights over property known as Kampi Ya Moto/Kampi Ya Moto Block 1/101, which he legally bought from first respondent.
The appellants claim against the respondents in the lower court was
an order of permanent injunction to restrain the respondents by themselves, their servants, agents, cronies, relatives and/or employees from alienating, cultivating, disposing, trespassing unto and/or interfering in any manner with the appellants parcel of land known as Kampi ya Moto/Kampi ya Moto Block 1/101 measuring approximately 6.07 Hectares or thereabout and an order compelling the respondents to transfer property known as Kampi ya Moto/Kampi ya Moto Block 1/101 to the appellant. The appellant ultimately prayed for costs of the suit.
The 1st respondent filed a defence admitting having entered into a sale agreement with the appellant but denied the allegations that the appellant has any legal interest or beneficial interest in the property. No interest was transferred to the appellant.
The 2nd and 3rd respondents filed a joint statement of defence stating that the parcel of land was registered in the names of Dickson Ossen Arap Cherogony. The property was not delivered to the 1st respondent and that the deceased has prohibited transmission of the property to any person until after the expiry of 20 years. No consent of the land Control Board had been obtained by the respondents. They state that the appellant suit is without merit.
Evidence on Record
When the matter came for hearing on 14th June 2022, the appellant, Sammy Seguton Kibet asked the court to adopt his statement dated 17th February 2022 as evidence in chief which was done. In a nutshell, the appellant states and he is related to the respondent as a cousin. The 1st respondent’s father was deceased but succession had been completed and what was pending was transmission of the property to the 1st respondent. Instead of waiting for transmission the 1st respondent decided to sell the property to the appellant at a consideration of 3,000,000 which he paid and took possession of the property in 2011. He buried his niece on the land. On cross examination he reiterates that he paid Kshs3,000,000 the last payment being 20th September 2012.
Mr Laban Chepsergon Cherogony, the 1st respondent also asked the court to adopt his statement dated 28th June 2021 as evidence in chief which the court did. He states that he sold the land which was part of his inheritance and that he was a beneficiary. He states that he had a pressing issue and therefore sold the land to the appellant. He confirmed having been paid the purchase price but he converted the sale into a lease but does not state the terms of the lease.
Determination by the Lower Court
The learned magistrate having considered the evidence on record and rival submission rightfully found the following issues ripe for determination
1. Whether the suit is statute barred.
2. Whether the sale was void for failure to obtain consent of Land Control Board.
3. Who should bear costs?
On the 1st issue the Learned Magistrate found that the parties entered into agreement on 8th November2011, the suit was filed on 17th February 2020. However, the matter involves contractual issues and occupation of the land and therefore the suit is not statute barred. On the issue of the consent of the Land Control Board the Learned Magistrate found that section 6(1) and 8(1) of the Land Control Act are very clear and devoid of any ambiguity and coached in mandatory terms that the consent of the Land Control Board must be obtained. The learned Magistrate found that parties failed to adhere to section 6(1) and 8(1) of the Land Control Act Cap 302 Laws of Kenya hence the transaction was void.
The court found that the appellant was in possession of the suit land hence the presumption that the sum was paid in full and ordered that the 1st respondent do refund a sum of Kshs 3,000,000 paid by the appellant.
The Appeal
The appellant was dissatisfied with the judgment hence appealed to this court on grounds that: -
i. The Learned trial Magistrate erred both in fact and law by holding that failure to apply for and get the Land Control Board Consent within 6 months rendered the transaction void yet the superior courts have settled the law regarding the same as the court ought to have looked at the reasons for the failure to get the Land Control Board Consent which was chiefly occasioned by lack of cooperation and collaboration by the very Respondents.
ii. The learned trial Magistrate erred both in fact and law by centering her decision on one issue i.e. Lack of the Land Control Board Consent yet the appellant had pleaded other issues including but not limited to the existence of sale agreement between the Appellant and the 1st Respondent; the appellant occupation and the extensive developments done on the suit property with the knowledge and permission of the Respondents; and specific performance.
iii. The Learned trial magistrate erred both in fact and law by failing to appreciate the Appellant's pleadings, testimony, un-contradicted evidence and the extensive submissions which all point to the fact that the Appellant is the owner of the land parcel title number Kampi ya Moto/Kampi ya Moto Block 1/101 Having purchased the same from the 1st Respondent and thereafter gained possession and has done there at major developments.
iv. The Learned trial magistrate erred both in law and fact by ordering a refund of the purchase price only yet the Appellant has done extensive developments on the suit property which has increased the Value of the suit property to a tune of more than Kenya Shillings 70 Million and abiding by the impugned judgment would constitute unjust enrichment on the part of the Respondents.
v. Learned trial magistrate erred both in fact and law by failing to appreciate the Legal principles of Constructive trust and proprietary estoppel which the Superior courts have clarified and settled the law in our jurisdiction and thus arrived at an erroneous conclusion and or decision.
vi. The Learned trial magistrate erred both in fact and law by ignoring the Respondents' admission that indeed the Appellant purchased the land parcel title number Kampi Ya Moto/Kampi Ya Moto Block 1/101 from the 1st Respondent and the only issue that was pending was for the Respondents to hand over completion documents to the Appellant.
vii. Learned trial magistrate erred both in fact and law by proceeding to the decision in the case of David Sironga Ole Tukai vs Francis Arap & 2 Others (2014) EKLR whose facts are distinguishable from the appellant’s case and ignored the decision in Aliaza v Saul (Civil Appeal 134 of 2 017) [2022] KECA 583 (KLR) (24 June 2022) (Judgment) and many others whose facts are in tandem with the appellant's case.
viii. The learned trial magistrate erred both in fact and law by ordering that each party to bear their own costs without any justification and it's now trite law that costs follow the event.
The appellant prays that this court does set aside the lower court judgment and decree of 13.06.2024 and substituting thereat with an order and/or decree allowing the suit with costs to the appellant.
The Cross Appeal
The respondents filed a cross appeal on grounds that:-
1. The Learned trial Magistrate erred in law and fact by failing to dismiss the Appellant's suit (with costs) after finding that the sale transaction between the Appellant and the 1st Respondent was void.
2. The Learned trial Magistrate erred in law and fact by granting the relief of refund of the purchase price with interest thereon against the 1st Respondent despite there being no pleading and/or prayer in that regard and by so doing contravening the principle that pleadings bind a Court in the same manner as the parties before it.
3. The Learned trial Magistrate erred in law and fact by awarding interest from the date of the sale transaction, or at all, on the irregular award of refund of the purchase price despite there being no allegation, pleading or finding of fault on the part of the 1st Respondent regarding the failure to apply for or obtain the consent of the relevant Land Control board, or at all.
4. By making the irregular relief of refund of the purchase price with interest against the 1st Respondent, the learned trial magistrate erred in law and fact by failing to consider the fact that the Appellant had at the date of judgment, had possession and gainful use of the subject land for over 12 ½ years.
5. The learned trial Magistrate erred in law and fact by finding that the appellant paid the purchase price in full without any evidence to that effect and/or against the weight of overwhelming evidence to the contrary.
6. The learned trial magistrate erred in law and fact by failing to find that the appellant’s suit was wholly based on contract and/or that it was statute- barred.
7. The learned trial magistrate erred in law and fact by failing to find that the Appellant’s suit did not establish any cause of action against the 2nd and 3rd respondents and/or not establish any cause of action against the 2nd and 3rd Respondents and/or that due to want of privity of contract, the reliefs sought could not be awarded as against the 2nd and 3rd defendants.
8. The learned trial Magistrate erred in law and fact by failing to dismiss the Appellant’s suit against the 2nd and 3rd defendants will costs.
The respondent prays that that the appeal be dismissed with costs and the cross-appeal be allowed. The award of an order of refund of the purchase price to the Appellant again 1st Respondent with interest thereon, or at all, as made by the Honorable Y. I Khatambi, Principal Magistrate, vide the judgment delivered on 13th June 2024 in Nakuru Chief Magistrate’s Court Environment and Land court Case No.26 of 2020 be set aside or varied and in its place judgment be entered dismissing the suit against the Respondents/Cross appellant with costs.
Rival Submissions
Counsel for the Appellant filed submissions dated 28th October, 2025 and identified the following issues for determination:
a. Whether failure to obtain a consent from the Land Control Board renders the sale agreement between the Appellant and the 1st Respondent/Cross-Appellant void?
b. Whether the Appellant is the beneficial owner of the suit property hence the Respondents/Cross-Appellants should transfer the land to him?
c. Whether the suit was wholly based on contract and/or that it was statute-barred?
d. Whether the Appellant’s suit established a cause of action against 2nd and 3rd Respondents/Cross-Appellants?
e. Whether the Appellant is entitled to a refund of the purchase price and interest accruing thereon?
f. Who should bear the costs?
On the first issue, counsel submitted that the 1st Respondent and the Appellant entered into a binding agreement whereby the 1st Respondent agreed to sell the parcel of land known as KAMPI YA MOTO/KAMPI YA MOTO BLOCK 1/101 in exchange for payment by the Appellant. It was counsel’s submission that when the Appellant entered into the suit parcel of land in the year 2011, a constructive trust in his favour was created in respect of the land. Counsel submitted that the Appellant has already invested time and resources in the transaction and is entitled to the land he paid for. Counsel relied on the authorities namely, Kiruga vs Kiruga & Another [1988] KLR 348, Kamau vs Mungai & Another [2006] 1 KLR 150, Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri [2014] eKLR, Aliaza vs Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR), Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, William Kipsoi Sigei vs Kipkoech Arusei & another [2019] eKLR and David Sironga Ole Tukai vs Frnacis Arap Muge & 2 others [2014] eKLR.
On the second issue, counsel submitted that the 1st Respondent who was the beneficiary of the suit parcel of land and had capacity to sell the said land when the grant had already been confirmed. Counsel submitted that there is a certificate of grant dated 3rd August, 2005 which shows that the 1st Respondent gets the whole share of parcel number KAMPI YA MOTO/KAMPI YA MOTO BLOCK 1/101. Counsel submitted that the 1st Respondent was the legal owner of the suit parcel and he therefore had capacity to sell the property. Counsel relied on Sections 9 (1b), 10 and 83 (g) of the Law of Succession Act.
On the third issue, counsel submitted that the trial magistrate correctly found that the Appellant’s claim was a land claim and not a mere contractual dispute. Counsel submitted that the claim was properly anchored on ownership and possession of land and was filed within the limitation period. On the fourth issue, counsel submitted that the Appellant’s suit established a cause of action against the 2nd and 3rd Respondents against whom the remedies sought by the Appellant may be awarded.
On the fifth issue, counsel submitted that the issue of refund of the purchase price does not arise as the transaction between the Appellant and the 1st Respondent was valid and the Appellant’s primary remedy remains specific performance which is the transfer of the suit parcel of land. On the sixth issue, counsel relied on Section 27 (1) of the Civil Procedure Act and asked the court to award the Appellant the costs of the suit. Counsel asked the court to find that the Appellant has proved his case and grant the orders sought with costs.
Counsel for the Respondents filed submissions dated 11th December, 2025 and identified the following issues for determination:
a. Whether the sale comprised in the agreement dated 8th November, 2011 is void for all purposes for failure to apply for and/or obtain consent of the relevant Land Control Board?
b. Whether the Appellant’s claim was statute barred?
c. Whether the order of refund of the purchase price could properly issue?
d. Whether any cause of action was proved against the 2nd and 3rd Respondents?
e. What are the appropriate orders to make?
f. Who should bear the costs of the appeal?
On the first issue, counsel submitted that the sale of the subject land as set out in the agreement dated 8th November, 2011 is void for all purposes for want of an application for and/or consent of the relevant Land Control Board. Counsel relied on Sections 6 (1) and 8 (1) of the Land Control Act and the following cases: David Sironga Ole Tukai vs Francis Arap Muge & 2 others [2014] eKLR, George Chayuga Aliaza vs Zephaniah Khisa Saul [2022] KECA 583 (KLR), Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, Virginia Ciamati Murage & Another vs Stanley Advane Kirimi [2021] eKLR and William Kipsoi Sigei vs Kipkoech Arusei & Another [2019] eKLR.
On the second issue, counsel submitted that the ownership and occupation of land are in law not qualities that automatically render a suit or cause of action timeous. Counsel submitted that assuming settlement of the purchase price was proved, which is not the case, this being a case for specific performance and there being no other obligation pending on the part of the Appellant, the Appellant’s perceived cause of action arose the moment he cleared the purchase price in 2012.
Counsel submitted that for the Appellant’s suit to have been valid, it ought to have been filed in 2018 and the suit was filed on 18th February, 2020 hence the Appellant’s suit was statute barred. Reliance was placed on the case of George Muturi Mungai vs Francis Mbugua Giathi [2012] eKLR and Dennis Nyandu vs Francis Aburi Oyaro [2021] eKLR.
On the third issue, counsel submitted that the relief of refund of the purchase price of any part thereof was not available for the Court to grant as the Appellant never pleaded or sought the same and the Respondent did not lead evidence or submit on the issue. Reliance was placed on the case of I.E.B.C & Another vs Stephen Mutinda Mule & 3 others [2014] eKLR.
On the fourth issue, counsel submitted that an order for specific performance cannot issue as a party must show that he has discharged or is willing ready and able to discharge all his obligations thereunder. Counsel submitted that the Appellant failed to show that he discharged his obligations. Counsel went on to submit that an order of specific performance cannot issue as against the 2nd and 3rd Respondents due to lack of privity of contract. Counsel relied on the cases of Thrift Homes Limited vs Kays Investment Limited [2015] eKLR and Aineah Liluyani Njirah vs Agha Khan Health Services [2013] eKLR.
On the fifth and sixth issue, counsel relied on Section 27 of the Civil Procedure Act and asked the court to allow the appeal and award costs to the Respondents.
1. Analysis and Determination
I have considered the rival submissions by learned counsel and examined the Record of Appeal.
As this is a first appeal, it is my duty to analyze and re-assess the evidence on record and reach our own conclusions in the matter. It was put more appropriately in Selle -vs- Associated Motor Boat Co., [1968] EA 123, thus:
2. “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 due 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 that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).”
The following issues are ripe for determination:-
i. Whether failure to obtain the consent of the Land Control Board makes a sale transaction void and whether payment of consideration and occupation for a long time constituted constructive trust and property estoppel.
ii. Whether the relief of refund plus interest was properly considered by the Learned Magistrate.
iii. Whether the suit was statute barred.
iv. Who to bear costs of the appeal and the suit.
On the first issue as to whether failure to obtain consent of the Land Control Board was fatal to the land sale transaction and whether payment of consideration and occupation for a long period of time constituted constructive trust and property estoppel, this court observes that it is the general rule under Section 6(1) of the Land Control Act, Cap 302 Laws of Kenya that consent from the Land Control Board (LCB) should be obtained in any transaction revolving on agricultural land in Kenya. Courts have consistently held that without LCB consent, transactions such as sale, transfer, lease, mortgage, partition, or division of agricultural land within a land control area are null and void. This means the agreement is unenforceable, and no court can order specific performance. However, where a party has paid the whole purchase price as was in this case and has been put in possession and has substantially developed the property, the courts are hesitant to apply this provision to the letter because it would be unfair to the buyer to allow the seller to receive the money from the buyer and to re-take the land as happened in this case.
The appellant rightly cites the case of Macharia Mwangi Maina and 87 others V Davidson Mwangi Kagiri(2014) Eklr where the court of Appeal faced with the same issue, held:-
“It is our considered view that the respondent created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the 240 plots. In Mwangi and another –vs – Mwangi (1986) KLR 328, it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 126 (1) of the Registered Land Act is merely permissive and not mandatory. In Mutsonga – vs- Nyati (1984) KLR 425 and Kanyi – vs- Muthiora (1984) KLR 712, it was held 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 provides for the application of the common law of England as modified by equity.
In Yaxley – vs- Gotts and Another, (2000) Ch 162, it was held that 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. As Lord Bridge observed in Llyods Bank Plc – vs- Rosset, (1991) 1 AC 107,132, a constructive trust is based on “common intention” which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted on by the claimant. In the instant case, there was a common intention between the appellants and the respondent in relation to the suit property. Nothing in the Land Control Act prevents the claimants from relying upon the doctrine of constructive trust created by the facts of the case. The respondent all along acted on the basis and represented that the appellants were to obtain proprietary interest in the suit property. Constructive trust is an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. As was stated by Lord Reid in Steadman – vs- Steadman (1976) AC 536, 540,
“If one party to an agreement stands by and lets the other party incur expense or prejudice his position on the faith of the agreement being valid he will not then be allowed to turn around and assert that the agreement is unenforceable”.
As to the consent of the Land Control Board, in Mwangi and another – vs- Mwangi, (1986) KLR 328, it was held that the creation of a trust over agricultural land situated in a land control area, does not constitute any “other disposal or dealing” with the land within the meaning of Section 6 (1) (a) of the Land Control Act and therefore the consent of the local Land Control Board is not required.
This position had earlier been applied in the case of Gatimu Kinguru – vs- Muya Gathangi (1976) KLR, 253 where it was stated:
“The creation of a trust over agricultural land in a land control area does not constitute an “other disposal of or dealing” for the purpose of Section 6(1) of the Land Control Act and, therefore, does not require the consent of the local Land Control Board..”
The upshot of the above is that the transaction between the appellant and the 1st respondent did not require the consent of the land control Board as it amounted to an implied or constructive trust as the 1st respondent sold his share to the appellant and allowed him to take possession and develop the property. To this end, I do find that the learned magistrate erred in finding that the transaction was void for failure to adhere to Section 6(1) and 8(1) of the Land control Act Cap 302 Laws of Kenya.
On the issue as to whether the appellant was a beneficial owner of the property, this court finds that though the appellant was not the registered owner of the property, he was a beneficial owner having paid the purchase price and having been given possession of the same. The certificate of Confirmation of grant shows that the 1st respondent should get the whole share of the suit-land which land he has sold to the appellant. After the confirmation of grant, the 1st respondent became the legal owner of the suit land and therefore cannot hide behind the administritrix and Administrator of the estate of the deceased. He should transfer the property to the appellant. The argument by the 2nd and 3rd respondents that the deceased had indicated that no transfer was to be made to 3rd parties until the lapse of 20 years has no basis in terms of an oral will.
On the issue as to whether the appellants claim was statute barred, this court finds that the claim was based on constructive and implied trust after a long period of possession and therefore the learned magistrate properly held that the claim was a land claim and not a mere contractual dispute and therefore not time barred.
On the issue of refund, having found that the appellant was entitled to the suit land under constructive and implied trust, he is not entitled to a refund of the purchase price as the 1st respondent is entitled to keep the purchase price whereas the appellant should keep the suit property. The learned Magistrate therefore erred in ordering for a refund of the purchase price.
Ultimately, this court allows the appeal in terms that the lower court judgment and decree of 13.06.2024 is set aside and substituted with an order and/or decree allowing the suit, thus an order of permanent injunction is granted to restrain the respondents by themselves, their servants, agents, cronies, relatives and/or employees from alienating, cultivating, disposing, trespassing unto and/or interfering in any manner with the appellants parcel of land known as Kampi ya Moto/Kampi ya Moto Block 1/101 measuring approximately 6.07 Hectares or thereabout and further, I do grant an order compelling the respondents to transfer property known as Kampi ya Moto/Kampi ya Moto Block 1/101 to the appellant. Having received the purchase price from the appellant put him in possession of the suit property but refused to transfer the suit land to the appellant, the respondents shall bear the costs of the suit before the Magistrates’ Court and the costs of this appeal. The appellant to be put back in possession within the next 30 days. The cross appeal has no legs to stand on and is dismissed with costs.