https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1540

Mutie v Maitha (Civil Appeal 66 of 2020) [2026] KECA 1540 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1540 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 66 of 2020 LK Kimaru, LM Njuguna & JO Okello, JJA July 31, 2026 Between Agnes Ngeki Mutie Appellant and Jeremiah Kiily Maitha Respondent (Being an appeal against the judgment and decree of the Environment and Land Court at Machakos (Angote, J.) dated 19th October 2018inELC Appeal No. 215 of 2007) Judgment 1.The appeal before this Court arises from a long-standing dispute over a parcel of land known as LR No. Kibauni/Malunda/190 (hereinafter referred to as the “suit land”). The genesis of the legal battle dates back to 9th August 1991, when the Respondent, Jeremiah Kiilu Maitha, the vendor and respondent herein, entered into a sale agreement with Ngeki Mutie, the original purchaser of the suit land at a price of Kshs 45,000.00. 2.By a plaint dated 27th May 2003, the respondent herein filed a suit against Ngeki Mutie in the Senior Principal Magistrate’s Court at Machakos for the nullification of the sale agreement for want of the consent of the Land Control Board and an order for the purchaser to collect a refund of his money. 3.The purchaser filed a defence and counterclaim seeking an order for specific performance of the contract, stating that he was entitled to the land by way of adverse possession, having been on the land uninterrupted for more than twelve (12) years. During the pendency of the suit, the original purchaser passed away on 11th September 2003 and was substituted by his widow, Agnes Ngeki Mutie, the appellant herein. 4.In his judgment dated 19th November 2007, the learned magistrate dismissed the respondent’s case, finding that the respondent had failed to prove that the land was in a controlled area requiring approval from the Land Control Board. Ultimately, the trial court upheld the purchaser’s counterclaim, ordering legal ownership to be transferred to the estate of the deceased buyer. 5.Aggrieved by that decision, the respondent filed an appeal to the Environment and Land Court (ELC). In his grounds of appeal, he contended that the learned Magistrate erred when she held that the consent of the Land Control Board was not mandatory in respect to a transaction which falls within the ambit of section 6 of the Land Control Act. 6.After hearing the respondent’s appeal, the first appellate court (Angote J) found that the suit land was, in fact, agricultural land and that the sale was null and void for lack of Land Control Board consent. The court also held that the purchaser had not proven the elements of adverse possession. Consequently, the respondent was ordered to refund the purchase price of Kshs 45,000.00 plus interest to the purchaser’s estate. 7.Undeterred, the buyer's widow, Agnes Mutie, being aggrieved by the ELC’s decision, has filed this second appeal. In her memorandum of appeal, the appellant has raised eleven (11) grounds summarized as follows: that the learned Judge erred in law and fact by finding that she was not entitled to the suit land due to a lack of consent from the Land Control Board, that the first appellate court erred by directing the respondent to pay a refund of the purchase price at Kshs 45,000.00 while disregarding the evidence that the appellant had developed the land for more than seventeen (17) years, that the learned judge erred in failing to hold that the payment of the full purchase price and consequential possession constituted an overriding interest to the respondent’s title and that the respondent was estopped from registering the suit land in his name. That the first appellate court erred by failing to find that the respondent was estopped from relying on section 6 of the Land Control Act, that the learned Judge erred in failing to find that the appellant was not given notice to participate in the hearing. 8.The appellant sought orders that the judgment of the Environment and Land Court be set aside and that the judgment of the Chief Magistrate’s Court be reinstated. 9.The appeal proceeded by way of written submissions. In her submissions dated 20th November 2020, the appellant contends that, at the time of the sale in 1991, the suit land was unregistered and undergoing adjudication, meaning that the interests were still being ascertained. That the transaction was witnessed by the assistant chief, and it was therefore fraudulent of the respondent to register the property in his name in 1998, knowing that the appellant was already in possession. 10.The appellant relies on section 8 of the Land Control Act, asserting that the court has the authority to extend the period of seeking consent from the Land Control Board to meet the ends of justice. 11.On the adequacy of the refund of the purchase price, the appellant challenges the ELC’s order for a refund of Kshs 45,000.00, arguing that it is grossly inadequate. It is submitted that the land has fundamentally appreciated since 1991, a fact that the respondent admitted during testimony. Citing the case of Peter Mjunga Gathuru vs. Harun Osoro Nyambuki & Anor [2015] eKLR, the appellant contends that where a land transfer is not possible, the court should order a refund based on the current market value as determined by a licensed valuer, rather than a nominal refund of the historical price. 12.On the application of equitable doctrines and constructive trust, the appellant argues that, having received the full purchase price, the respondent held the land in trust for the buyer and was estopped from registering it in his own name to the appellant's detriment. Relying on the cases of Willy Kimutai Kitilit vs. Michael Kibet [2018] eKLR and William Kipsoi Sigei vs. Kipkoech Arusei & Anor [2019] eKLR, the appellant submits that equitable doctrines of proprietary estoppel and constructive trust apply to controlled land transactions to prevent the Land Control Act from being used as an instrument of fraud. 13.There were no submissions on record for the respondent. 14.This being a second appeal, our jurisdiction is limited to the consideration of matters of law only. In Kenya Breweries Ltd vs. Godfrey Odoyo [2010] eKLR Onyango Otieno, JA. expressed himself on this point as follows:“In a second appeal, however, such as this one before us, we have to resist the temptation of delving into matters of fact. This Court, in a second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered, or, looking at the entire decision, it is perverse.” 15.We have carefully considered the grounds of appeal, the written submissions by the appellant, the authorities cited, and the applicable law. It is not in dispute that vide the sale agreement dated 9th August 1991, the respondent sold the suit land to the appellant’s husband. 16.The first appellate court found that lack of consent of the Land Control Board vitiated the sale agreement between the parties. The ELC court reasoned as follows;“17.As I have indicated above, the suit property was agricultural land. Consequently, any transfer or subdivision of the land required the consent of the Land Control Board. As was held by the Court of Appeal in Omuse Onyapu vs. Lawrence Opuko Kaale, Civil Appeal No. 21 of 1992, if the transaction for the sale of land is a controlled transaction involving the sale of an agricultural land within the meaning of Section 6 of the Land Control Act, it is null and void for all purposes for lack of consent of the appropriate Land Control Board.” 17.In its reasoning, the ELC court invoked section 6(1) of the Land Control Act, which renders void any controlled transaction in agricultural land that is not accompanied by consent of the Land Control Board (LCB), which was issued within six months from the date of the agreement. 18.The appellant's position in her submissions before us is that, despite the Land Control Board consent not having been obtained, a constructive trust was created in her favour. 19.And although one need not be in actual physical possession and occupation of the land to prove a trust in land (see the case of George Mbiti Kiebia & Another vs. Isaya Theuri M’lintari & Another [2014] KECA 341 (KLR), evidence tendered before the trial court was that upon payment of the purchase price, the appellant’s husband took possession of the suit land in 1991. The ELC Court also found that there was no evidence tendered to show that the respondent continued to be in possession of the suit land after selling it. 20.Does the respondent therefore hold an indefeasible title free from trust? The suit land is registered under the Registered Land Act, Cap 300 (now repealed), which provides at section 28 that:“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-a.To the leases, charges, and other encumbrances and to the conditions and restrictions, if any, shown in the registerb.unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register.Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.” 21.Thus, registration of land does not preclude a proprietor from obligations where he or she is subject as a trustee. Incidentally, the question of creation of a constructive trust in the absence of a Land Control Board consent has been considered by this Court in several cases. 22.This Court sitting in Nyeri in Macharia Mwangi Maina & 87 Others vs. Davidson Mwangi Kagiri [2014] eKLR, in a matter where the purchasers of the property were allowed to occupy the property that they had paid the full consideration for, and later, among other conditions, failed to secure the consent of the Land Control Board, rendered itself as follows:“25.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….”26.Article 159 (2) (b) of the Constitution requires that justice should not be delayed. This matter has been in the courts since 1993. The persons or groups interested in the suit property are individuals of different status in the Kenyan society.Article 159 (2)(a) of the Constitution requires justice to be administered to all, irrespective of status; Article 159 (2) (g) of the Constitution stipulates that justice shall be administered without undue regard to procedural technicalities. This Court is a court of law and a court of equity; Equity shall suffer no wrong without a remedy; no man shall benefit from his own wrongdoing; and equity detests unjust enrichment. This Court is bound to deliver substantive rather than technical and procedural justice. The relief, orders, and directions given in this judgment are aimed at the delivery of substantive justice to all parties having legal and equitable interest in the suit property.” (emphasis ours) 23.In the case of George Chaguya Aliaza vs. Zephania Khisa Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR), this Court (though differently constituted) had this to say about the lack of LCB consent;“In my view, from the time the appellant entered the first of the two parcels of the suit land in 2002 and into the subsequent portion that he purchased in 2004, a constructive trust in his favour was created in respect of the land. Such trust, as was found by the court in the case of Macharia Mwangi Maina, became an overriding interest over the suit land. The failure on the part of the respondent to obtain the necessary consent from the Land Control Board within the required period of six (6) months to enable the appellant transfer the suit land into his name does not render the transaction void. Equity and fairness, the guiding principles in Article 10 of the Constitution, require that the Land Control Act is read and interpreted in a manner that does not aid a wrongdoer, but renders justice to a party in the position of the appellant.” 24.Similarly, in Diasproperty Limited & 5 Others vs. Githae & 10 Others [2024] KECA 318 (KLR), while finding that the Land Control Act was not a statute aiding unconscionable conduct between parties, the Court held that“We hold that there was proof that, following the purchase and the occupation of the 200 acres by the respondent, as shown in the foregoing, a constructive trust over the portion was created in favour of the respondent. The constructive trust became an overriding interest over the land, and the failure by the deceased to obtain the necessary Land Control Board consent within the time indicated under the Land Control Act did not render the transaction void and unenforceable. When we read the Land Control Act in terms of Article 10(2) of the Constitution, we find that the constructive trust that the learned Judge found had been created by the facts of this case was the necessary equitable remedy to enable the respondent to obtain justice as against the unconscionable conduct of the appellants.” 25.The Supreme Court also pronounced itself on the importation of a constructive trust into a land sale agreement to defeat a registered title in the case of Shah & 7 Others vs. Mombasa Bricks & Tiles Limited & 5 Others [2023] KESC 106 (KLR) as follows:“73.…we establish that a constructive trust is a right traceable from the doctrines of equity. It arises in connection with the legal title to property when a party conducts himself in a manner to deny the other party beneficial interest in the property acquired. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit.78.We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable remedy which is an intervention against unconscionable conduct. Where the circumstances of the case are such that it would demand that equity treat the legal owner as a trustee, the law will impose a trust. It is imposed by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title.” 26.Considering the decisions of the Supreme Court and this Court alongside the circumstances of this case, and there being no evidence led by the respondent to show that he continued being in occupation of the land after selling the same to the appellant’s husband, it is our finding that a constructive trust was created when the respondent received the purchase price and gave possession of the suit property to the appellant and her late husband. The possession was acknowledged by the appellate court in its judgment. 27.We therefore take the position that the respondent had put the appellant and her husband in possession of the suit property with the intention that he was to transfer the property to them, and as such, a constructive trust having been created, the respondent could not renege. 28.In the end, we allow the appeal and set aside the decision of the ELC Court. To meet the ends of justice, we order that the title issued to the respondent be and is hereby cancelled and in its place a new title be issued to the appellant. The appellant is awarded the costs of the appeal. 29.Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.L. KIMARUJUDGE OF APPEAL.....................................L. NJUGUNAJUDGE OF APPEAL.....................................DR. J. OKELLOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR