https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4842

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCLA NO. E065 OF 2025** **FAUSTIN MUNYI KARENGA** ------------------------------------------------**APPELLANT** **VERSUS** **STEPHEN NGONDI MANGURE** ----------------------------------------**RESPONDENT** *(Being an appeal from the Judgment of Hon. C.K. Kisiangani (P.M.) delivered on 7th August 2021 in Runyenjes PM-ELC Case No. E015 of 2021)* **JUDGMENT** 1. This is an appeal against the judgment of the trial court (Hon. C.K. Kisiangani, P.M.) delivered on 7th August 2021 in Runyenjes PM-ELC Case No. E015 of 2021, in which the trial magistrate allowed the Respondent's claim for specific performance and ordered the Appellant to transfer Land Parcel No. Kyeni/Kigumo/2961 to the Respondent within thirty (30) days, while dismissing the Appellant's counterclaim with costs and interest. **BACKGROUND** 1. By a plaint dated 8th June 2021, the Respondent, then plaintiff, sought against the Appellant, then defendant: 2. an order that the Appellant transfer Land Parcel No. Kyeni/Kigumo/2961 to him; 3. in the alternative, payment of the current market value of the said parcel; 4. interest thereon; 5. costs of the suit; and 6. any other relief the court deemed fit. 7. The Appellant filed a statement of defence and counterclaim dated 23rd December 2022 denying the Respondent's claim and counterclaiming for mesne profits for thirty (30) years of alleged illegal occupation of the suit land, together with removal of cautions and restrictions placed on the parcel. 8. The Respondent's case, as borne out by his testimony and that of his valuer, was that he entered into a written agreement dated 23rd September 1987 with one Njeru Nguu (deceased), the registered proprietor and the Appellant's father, for the sale of the suit land at a consideration of Kshs. 15,000/-, which he paid in full. He was thereafter given vacant possession, which he has retained to date, having developed the land with bananas, beans, grevillea and other trees, and napier grass. The vendor died on 18th February 1988, approximately four months after the agreement. The Appellant's mother, Vergiska Maringo, subsequently petitioned for letters of administration in Runyenjes Succession Cause No. 53 of 2002, in the course of which she at one point listed the Respondent as entitled to 0.405 Ha of the suit land before reversing that position. The succession court found the Respondent was not a beneficiary of the estate under the law of succession and directed him to pursue his claim in the Environment and Land Court, which he did. 9. The Appellant's case was that his late father never informed him of any sale, that the suit land remains registered in his father's name, that no letters or reports were made to evict the Respondent, and that he could not confirm or deny the genuineness of the agreement as he was not present at its execution. 10. The Appellant, by a Memorandum of Appeal dated 3rd September 2025, raised twelve grounds, which may conveniently be condensed into the following broad complaints: (i) that the trial court erroneously equated cultivation with occupation and a proprietary interest; (ii) that it disregarded the forgery allegations raised in the succession cause; (iii) that the suit was time-barred; (iv) that the sale agreement was void for want of Land Control Board consent and was not attested as required by law; (v) that the Respondent was never the lawful owner and the Appellant lacked capacity or standing to be ordered to transfer land he neither owns nor administers; (vi) that mesne profits ought to have been awarded on the counterclaim; and (vii) that the order effectively disinherited the Appellant and was internally inconsistent. 11. This being a first appeal, this court is under a duty to re-evaluate, re-assess and reanalyse the evidence on the record and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and making due allowance in that respect: Selle v. Associated Motor Boat Co. Ltd [1968] EA 123. The court will be slow to interfere with findings of fact based on credibility of witnesses, but is entitled and obliged to draw its own conclusions from the evidence as a whole and on questions of law. **ANALYSIS AND DETERMINATION** 1. The Appellant, relying on Sisto Wambugu v. Kamau Njuguna [1983] KECA and Mwagandi v. Lewa [2025] KECA 1036, submits that mere cultivation does not amount to occupation capable of founding an overriding interest under Section 28 of the Land Registration Act. This submission, while a correct statement of the law regarding overriding interests grounded solely on occupation, misapprehends the true basis of the Respondent's claim. The Respondent did not plead or prove an adverse possession claim, nor an overriding interest founded on bare occupation. His claim was, and remains, one for specific performance of a concluded contract of sale, under which he paid the full purchase price and was let into vacant possession by the vendor. His subsequent long, undisturbed and extensive cultivation and development of the land from 1987 to date is relevant not as an independent source of title, but as compelling corroboration of part performance of that contract and of the equitable interest it generated. Ground 1 accordingly fails. 2. The Appellant contends that the trial court ignored assertions made in Runyenjes Succession Cause No. 53 of 2002 alleging forgery of succession documents. It is significant that the succession court itself made no finding of forgery; it merely held that the Respondent was not a beneficiary of the estate under the Law of Succession Act and directed him to ventilate his claim in the proper forum, being this court's jurisdiction. An unproven allegation raised in different proceedings, upon which no adverse finding was ever made, cannot be relied upon collaterally to impeach a separate and distinct contractual claim. Ground 2 fails. 3. It is not disputed that the sale agreement is dated 23rd September 1987 and that the former suit was filed in 2021, well outside the ordinary limitation periods under the Limitation of Actions Act. However, the record shows, and the Respondent's evidence established without challenge, that leave to file out of time was sought and granted in Milestone Application No. 1 of 2021 on 28th June 2021, produced as P-Exhibit No. 2. That order was never appealed and stands to date; it is not open to the Appellant to reopen the question of limitation collaterally in this appeal. In any event, where a purchaser has paid the full purchase price and been let into exclusive, undisturbed possession under a contract of sale, equity does not permit limitation to be invoked by a vendor or his successors who stood by for decades without asserting any right to the land or seeking to eject the purchaser; the purchaser's possession, rather than being defeated by the passage of time, is in such circumstances fortified by it. Ground 3 fails. 4. The Appellant argues that the agreement is void for want of Land Control Board consent under Section 6 of the Land Control Act, and for want of attestation under Section 3(3) of the Law of Contract Act. As to consent, the Court of Appeal, sitting as a five-judge bench in Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR, held that absence of Land Control Board consent renders a controlled transaction void for purposes of passing legal title, but does not thereby leave a purchaser who has paid the full price and been let into possession without remedy; equity will not permit a vendor, or those claiming through him, to retain both the land and the purchase price to the unjust enrichment of the estate. This principle was applied and developed further in Willy Kimutai Kitilit v. Michael Kibet [2018] eKLR and William Kipsoi Sigei v. Kipkoech Arusei & Another [2019] eKLR, where the courts recognised that a vendor's estate which stands by for decades while a purchaser develops land in the bona fide belief that it is his, cannot later resile from the bargain merely on account of a formality that was always within the vendor's own power to procure. 5. As to attestation, the doctrine of part performance operates to save an otherwise informally executed agreement for the disposition of land where a party has performed acts unequivocally referable to that agreement — here, payment of the full consideration and the taking of exclusive possession followed by substantial development over more than three decades. Section 3(3) of the Law of Contract Act cannot be deployed as an instrument of fraud to defeat a purchaser who has so performed. Ground 4 accordingly fails, save that, for the reasons given later in this judgment, the practical mode of giving effect to the Respondent's equitable interest requires modification to account for the outstanding requirement of consent. 6. It is common ground that the suit land remains registered in the name of the deceased vendor, Njeru Nguu, and that neither the original defendant (the Appellant's late mother) nor the Appellant himself has been shown on the record to hold letters of administration or confirmed grant enabling either of them to lawfully transfer the land in a representative capacity. A bare order directing the Appellant, in his personal capacity, to "transfer" land that is neither registered in his name nor vested in him as legal representative of the estate is, with respect, not sustainable as framed, and this ground has merit to that limited extent. This does not, however, defeat the Respondent's underlying equitable entitlement, which the trial court correctly recognised; it means only that the mode of enforcement must be reframed to bind the proper party — the estate, acting through its legal representative — and to make provision for the consent process addressed above. It bears emphasis that once the deceased vendor received full consideration and delivered possession to the Respondent, he retained no more than the bare legal title, held on a constructive trust for the Respondent pending completion of the formalities of transfer; the Respondent's underlying interest is accordingly protected as a trust interest and as an interest of a person in actual occupation under Section 28 of the Land Registration Act, and binds the estate and all who take through it, including the Appellant. 7. Mesne profits are a species of special damages and must be specifically pleaded and strictly proved: Attorney General v. Halal Meat Products Limited [2016] eKLR; Order 21 Rule 13 of the Civil Procedure Rules. No evidence of quantum was tendered by the Appellant in support of the counterclaim; the valuation report produced by DW-2 was unsigned, and the witness could not even confirm the location of the land he purported to value. Further, and in any event, mesne profits lie only against a trespasser in wrongful occupation; the Respondent has, for the reasons already given, been in possession under colour of a valid and part-performed contract of sale, not as a trespasser. The trial court was right to dismiss the counterclaim, and ground 8 fails. 8. The suggestion that the order disinherits the Appellant of family land misconceives the effect of a completed and part-performed sale entered into by the registered proprietor in his lifetime. Land in respect of which full consideration was received and possession given before death does not form part of the free estate available for distribution among heirs in the first place; the heirs' rights attach only to what the deceased in fact left behind, subject to obligations he had already assumed in his lifetime. There is, similarly, no inconsistency in a finding that a registered proprietor was under no obligation to consult his family before dealing with his own land, on the one hand, and an order enforcing the resulting sale, on the other; a registered proprietor's rights under Sections 24 and 25 of the Land Registration Act are, subject to overriding interests and existing encumbrances, absolute. Grounds 10, 11 and 12 fail. **CONCLUSION AND DISPOSITION** 1. Having re-evaluated the evidence and submissions on record, this court finds no merit in the appeal on the substantive question of the Respondent's entitlement to the suit land, nor on the dismissal of the counterclaim. The appeal succeeds only to the limited extent that the mode of enforcement of the transfer order requires variation to reflect the realities of registration, representative capacity and the outstanding requirement of Land Control Board consent. 2. Accordingly, the court makes the following orders: 3. The appeal against the finding that the Respondent is entitled to specific performance of the sale agreement dated 23rd September 1987, and against the dismissal of the Appellant's counterclaim, is dismissed. 4. The order of the trial court directing transfer of Land Parcel No. Kyeni/Kigumo/2961 to the Respondent is varied as follows: 5. the legal representative(s) of the estate of Njeru Nguu (deceased), upon confirmation of grant, shall within ninety (90) days of this judgment take all reasonable steps to procure the requisite Land Control Board consent and effect transfer of the suit land to the Respondent failing which the Land Registrar Embu to dispense with the production of the Original Certificate of Title and the Deputy Registrar of this Honourable Court to execute all necessary transfer documents in favour of the Respondent. 6. The Appellant's counterclaim, having been dismissed by the trial court, remains dismissed. 7. The Respondent, having substantially succeeded, is awarded the costs of this appeal. DATED, SIGNED AND DELIVERED AT EMBU THIS 27TH DAY OF JULY, 2026 .…………………………………………… **HON. E. CHERONO** ELC JUDGE, EMBU In the presence of; 1. M/S Kamochu H/B for Muthoni Ndege for the Respondent 2. Appellant/Advocate-absent 3. Ruth C/A