[2018] KEHC 1538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CASE NO. 316 OF 2012

(FORMERLY HCCC NO. 51 OF 2012)

JERUSHA WANGARI MWANGI.............................................PLAINTIFF

VERSUS

BEATRICE MUTHONI KARANJA..............................1ST DEFENDANT

MAINA KARANJA........................................................ 2ND DEFENDANT

NICHOLAS GITAU KARANJA...................................3RD DEFENDANT

JUDGMENT

1. Proceedings in this matter commenced on 28th February 2012 when the plaintiff filed this case as HCCC No. 51 of 2012 (Nakuru). The matter was later transferred to this court. In the meantime, the plaint was amended and the latest version on record is Further Amended Plaint filed on 1st December 2016, through which the plaintiff seeks judgment against the defendants as follows:

a. The honourable court be pleased to permanently restrain the defendants by themselves or agents, servants and or otherwise from interfering in any way with the quiet possession of 3acre parcel of all that LR No. 12431/27 situated South of Njoro Town (Ng’ondu Farm) and a transfer of the same to the plaintiff.

b. The plaintiff prays that this honourable court be pleased to issue an order of prohibition against any dealings with LR No. 12431/27 by the defendants, their agents, servants or employees whatsoever.

c. (Deleted)

d. This honourable court do extend the period within which an application for consent in respect of the transaction to the Land Control Board shall be made.

e. The plaintiff prays for this honourable court to compel the defendants to sign the transfer forms of 3acres of land from LR No. 12431/27 to the names of the plaintiff.

f. An order of specific performance.

g. Special damages amounting to KShs 29,750/=

h. General damages

i. In the alternative, the defendants do pay to the plaintiff the market value of the property valued at KShs 6,435,000/= as at 31st January 2015 or at the current market value at the time of judgment as compensation for failure to honour the terms of the agreements in respect of the suit property.

j. Costs of the suit.

k. Interest on (a) (b) and (c) above at court rates.

2. At the hearing, the plaintiff testified as PW1. She adopted her witness statement which was filed in court on 6th April 2017 and told the court that her case concerns a parcel of land known as LR No. 12431/27 Njoro and that the plot was sold to her by the defendants herein. The 1st defendant is the mother of the 2nd and 3rd defendants. The plaintiff stated that she initially bought one acre pursuant to a handwritten agreement in January 2009. She paid KShs 340,000 cash upon which she was allowed to take possession. She cleared the plot and started cultivation. The 2nd defendant who is an artisan even started constructing a house for the plaintiff on the plot. The measuring of the one acre was done visually by the defendants. They showed the plaintiff the boundaries. The amount that the plaintiff paid as purchase price was to help the 2nd and 3rd defendants obtain letters of administration in respect of the estate of Mbugua Karanja (deceased), their father. The deceased was the registered owner of the land. They however used the money without applying for letters of administration.

3. The plaintiff further stated that the defendants later offered her another one acre at KShs 340,000. The parties agreed that the plaintiff pays KShs 170,000 which she paid the defendants at home. In regard to the balance, the plaintiff and the defendants went to the defendants’ advocates A.N. Geke & Co. Advocates who prepared an agreement dated 6th July 2009 (PExb. 1) for 2 acres incorporating the initial one acre and the second one acre. In the agreement the purchase price was stated as KShs 680,000 for the two acres and that the plaintiff had paid KShs 510,000. The KShs 510,000 was arrived at taking into account the initial KShs 340,000 and the subsequent KShs 170,000 which she had paid. The balance of KShs 170,000 was to be paid after letters of administration were issued. The agreement provided that the plaintiff takes possession immediately and accordingly, the plaintiff took possession of the second acre.

4. The plaintiff added that the defendants put her in touch with their advocate who was following up the succession. The defendants later told her that their lawyer was unable to get the letters of administration and that they therefore decided to withdraw instruction from the lawyer. The defendants asked the plaintiff to pay to them the balance of KShs 170,000/=. She duly paid the amount to the defendants in the year 2010 in the presence of Mr Harrison Mbugua Kamau. The plaintiff then went back to Mombasa where she was based but continued cultivation and construction on the plot.

5. The plaintiff further stated that the defendants later offered her another 1. 25 acres at KShs 460,000. The parties prepared an agreement at home dated 7th March 2011 (PExb.5). The plaintiff paid KShs 160,000 cash upon signing of the agreement leaving a balance of KShs 300,000. The 1st defendant who said she couldn’t read or write asked Esther Wairimu Maina, her daughter in law, who also acted as her witness to sign for her while the 2nd and 3rd defendants signed against their names. The plaintiff later paid the defendants KShs 20,000 cash and open or cash cheques of KShs 80,000 and KShs 60,000. The cheques were drawn on co-operative bank and were paid to Nicholas Gitau and Maina Karanja (PExb.6 (a) and PExb.6 (b)). The plaintiff later issued to the defendants another post-dated cheque for KShs 150,000 payable to Maina Karanja. The cheque was honoured (PExb. 6(c)). The plaintiff then demanded that the defendants have the plots surveyed. The defendants brought a surveyor called Timothy Mwangi Nyaga who carried out a survey and fixed the beacons. The plaintiff and the defendants shared the surveyor’s charges. The plaintiff continued occupying and using the 3. 25 acres. Since she was not happy with the house the defendants had constructed for her, she constructed a new two room house. She also built another house her worker, a cowshed and a granary. The plaintiff added that the total deposit she paid for the last agreement (PExb.5) was KShs 310,000, leaving a balance of Ksh150,000 and that she paid the defendants through their advocate Ondieki Ayuka. She got to know Ondieki Ayuka when the parties were preparing the agreement at A.N. Geke’s office. The plaintiff paid through a banker’s cheque and was issued with a receipt (PExb. 11).

6. The plaintiff further testified that the plot that she bought was near Egerton University. The university offered the defendants more money and the defendants told the plaintiff that the plot was no longer hers. By then, the defendants had commenced succession proceeding in Succession Cause No. 516 of 2010 Nakuru, in respect of the estate of Mbugua Karanja. The plaintiff participated in the succession proceedings. A judgment dated 25th November 2014 was delivered in which the court dismissed her claim and advised her to lodge any claim in the Environment and Land Court. Due to destruction of her property, the plaintiff lodged a complaint with the police.

7. In conclusion of her evidence in chief, the plaintiff told the court that she had the plot valued. The valuation (PExb.12) showed that as at 2015 the value was Ksh.6, 535,000/=. She added that the defendants obtained grant of letter of administration as well as confirmation of grant then they shared the plot among themselves. The defendants never invited her to attend any Land Control Board meeting even though it was their duty to apply for consent of land board.

8. Under cross examination, PW1 stated that since the transaction started in 2009 she never filed any Land control Board forms and that everything she did in regard to the plot was done without consent of Land Control Board. She added that when the sale agreement was, no letters of administration had been issued to the defendants. The defendants and the plaintiff were not aware that the agreement was unprocedural. She stated that confirmation of grant in respect of the deceased’s estate was issued on 23rd January 2015, after this case had been filed in court. That she was an objector in the succession cause and that her objection was dismissed. The succession court directed her to await the outcome of the succession and then file a case against the administrator. She however proceeded to file this case before conclusion of succession because she did not trust the defendants.

9. PW2 was Timothy Mwangi Nyanga, a Land Surveyor working with Olweny & Associates, Licensed Land Surveyors. He told the court that between February and March 2011, Beatrice Muthoni Karanja (the 1st defendant) and the 2nd and 3rd defendants went to his office as clients. They wanted PW2 to survey land known as LR No. 12431/27, located near Egerton University. They gave PW2 a copy of the title. The registered owner was Karanja Mbugua, who was deceased by then. The 1st defendant told PW2 that she was the widow of the deceased and her sons the 2nd and 3rd defendants were beneficiaries. They told PW2 that they had sold 2 acres to the plaintiff and that A. N. Geke Advocate was following up the issue of letters of administration. They further said that the sale of the 2 acres was subject of an agreement that the lawyer was handling. The defendants instructed PW2 to visit the ground so that they could show him where they wanted the 2 acres excised from. PW2 proceeded to the ground on 7th March 2011. The plaintiff and the defendants were present at the site visit. At the ground PW2 found a permanent residential house at the site where he was to demarcate the 2 acres. The defendants instructed PW2 that the house should fall within the area that he was to demarcate since it belonged to the plaintiff. Before PW2 could demarcate the 2 acres, the two parties changed their minds and asked him if he could add 1. 25 acres on top of the 2 acres. The defendants and the plaintiff were in agreement that they would formalize the purchase of the extra 1. 25 acres through the lawyer and the planner. PW2 demarcated the 3. 25 acres but could not complete the survey process because disagreements seem to have arisen between the plaintiff and the defendants.

10. Under cross examination, PW2 stated that no Land Control Board Consent was presented to him. There was also no consent from the local authority.

11. PW3 was Joseph Mungatia Inoti, a registered valuer. He told the court that the plaintiff instructed him to value land in Njoro. The land is LR.12431/27 measuring 15. 5 acres. He was to value 3. 25 acres of it. He inspected the land which is situated in Njoro, about 1. 7 kilometres East of Egerton University. It is developed in a homestead which has several structures and is well fenced with barbed wire and growing grevillea trees. He valued it twice and prepared reports on both occasions. The first report is dated 31st January 2015. The value at the time was Kshs.6, 435, 000/=. The second valuation report is dated 26th April 2017 in which he valued it at Kshs.8, 600, 000/=.

12. The plaintiff’s case was closed at that point.

13. The defence then called Nicholas Gitau Karanja, the 3rd defendant, who testified as DW1. He stated that in the year 2009 the plaintiff went to his house in Ngondu in the company of one Francis Mungai. Francis Mungai told DW1 that they wanted to buy the defendants’ plot. DW1 and the plaintiff reached an agreement. Later DW1’s mother (the 1st defendant) and DW1’s brother (the 2nd defendant) also agreed to the transaction. They agreed to sell 2 acres to the plaintiff. They all went to an advocate called A. N. Geke who prepared a sale agreement. He identified the agreement as PExb 1 and added that the plaintiff paid KShs 510,000 leaving a balance of KShs 170,000/= which was to be paid after succession. The plot was registered in the name of the deceased and at the time of signing the sale agreement the defendants had not obtained letters of administration. The defendants started the process of obtaining letters of administration. The advocate told them to go and wait for the process to be complete.

14. DW1 further testified that in August 2011, the plaintiff commenced criminal proceedings against the defendants because DW1 stopped her from fencing. He explained that he did so because the land had not yet been surveyed. He added that according to the sale agreement, the plaintiff was to take possession after letters of administration had been issued and that at the time the criminal case was started, letters of administration had not been issued. There was criminal case No. 4151 of 2011 in which he was charged with destroying fence and removing beacons and No 4686 of 2011 in which he was charged with stealing beacons. Case No. 4686 of 2011 has been concluded. He was acquitted. Case No. 4151/2011 is still ongoing. From the time of the cases, the relationship between the plaintiff and us broke down. He was also charged in criminal Case No. 1404 of 2012 with malicious damage of fence or property and threatening James Kinyanjui using a ‘panga’. The case ended in his acquittal. He was again charged with Criminal Case No. 1164 of 2015 with malicious damage of fence. The case is ongoing. There is also Criminal Case No. 3465 of 2016 in which he is the accused and which is still ongoing. In Criminal Case No. 3426 of 2015 where he was charged alongside his brother Mose Maina and his son Timothy Maina with malicious damage of fence. The case is ongoing. The plaintiff was the complainant in all these criminal cases. According to DW1, the criminal cases were aimed at forcing him to accept things which were not in the agreement. For example, plaintiff wanted him to accept that the balance of KShs 170, 000 had been paid which was not the case.

15. DW1 also testified that the plaintiff took possession of the plot with the assistance of the police and that besides the plot in the sale agreement dated 6th July 2009, the defendants sold no other plot to plaintiff. He denied any knowledge of or even signing the agreement dated 7th March 2011 and stated that his mother (the 1st defendant) did not sign it since she affixes finger prints instead of signing documents.

16. He further stated that the defendants filed Succession Cause No. 516 of 2010 at Nakuru High Court in respect of the deceased’s estate. The court issued a Certificate of Confirmation of Grant dated 23rd January 2015 (DExb 3). In the distribution of the suit property, 4. 25 acres were given to the 1st defendant, 5. 5 acres to the 2nd defendant and 5. 2 acres to DW1 (3rd defendant). He added that the defendants never applied for consent of the Land Control Board in respect of the sale to the plaintiff and no consent of the said board has ever been issued. He explained that the defendants never sought consent due to the many criminal cases that the plaintiff had commenced against them. He also stated that the defendants never authorized any lawyer to receive money from the plaintiff on their behalf and that they did not receive any money from any lawyer stating that it had come from the plaintiff. That the plaintiff’s prayer for 3. 25 acres is not according to what was in the agreement and that the defendants are not ready to proceed with the transaction because the plaintiff has been unfair to them due to the criminal cases. He therefore urged the court dismiss the case with costs.

17. Under cross-examination, DW1 stated that at the beginning of the transaction, the plaintiff went to DW1’s house which is on the suit property. They agreed on that first day that the plaintiff was to buy 2 acres. The plaintiff and all three defendants went to the advocate’s office. Witnesses including Harrison M. Kamau were present. He added that the plaintiff took possession in the year 2011 and built a house. At that time the parties had a good relationship. Regarding the balance of Kshs.170, 000/=, he stated that it has not been paid and denied that it was paid in the presence of Harrison Mbugua. Further, he admitted knowing Esther Wairimu Maina who was one of the witnesses in the agreement dated 7th March 2011 (P Exb 5). He added that she is his brother’s wife. When shown P Exb 5, he stated that he never signed it, that he had only seen it in court and that the defendants did not sell any extra 1. 25 acres to the plaintiff. On being shown the plaintiff’s bank statements and a copy of the cheque No. 000066 for Kshs.150, 000/= (PExb 6A, PExb 6B and PExb 6C), he admitted receiving a cheque of Kshs.80, 000/= and added that he did not know about the other cheque for Kshs.60, 000/= payable to the 2nd defendant as well as the cheque for Kshs.150, 000/=.

18. He further stated that the defendants have never demanded the sum of Kshs.170, 000/= from the plaintiff and that they have never written to the plaintiff rescinding the agreement or even filed any case her claiming the Kshs.170, 000/=. He added that as at the time of his testimony, the defendants had not yet done subdivision and the plot was still registered in the deceased’s name. He also stated that he knew Ondieki Ayuka Advocate who used to be his lawyer until 2012.

19. During re-examination, he stated that the Kshs.80, 000/= was payment for hay which he had sold to the plaintiff and that they are ready to refund the Kshs.510, 000/= if the plaintiff vacates.

20. The defence case was closed at that point. Parties then filed and exchanged written submissions. The plaintiff’s submissions were filed on 30th May 2018 while the defendants’ were filed on 4th July 2018.

21. I have considered the pleadings, the evidence and submissions. The issues that arise for determination are firstly, whether the plaintiff and the defendants entered into agreements for sale of 3. 25 acres of land to be excised from LR No. 12431/27; secondly, if so, whether the agreements are enforceable; thirdly, if so, whether there was any breach of the agreements and lastly, what reliefs are available?

22. The defendants do not deny that they and the plaintiff executed the agreement dated 6th July 2009. A reading of the agreement shows that the plaintiff was described as purchaser while the defendants were described as beneficial owners and vendors in respect of a parcel of land measuring 2 acres to be excised from a parcel defined in the agreement as LR No. 27 Njoro. The parties to this case are however all in agreement that the proper description of the parcel is LR No. 12431/27 situated South of Njoro Town (hereinafter referred to as the suit property). The suit property was and remains registered in the name of Karanja Mbugua (deceased) who was the 1st defendant’s husband and the father of the 2nd and 3rd defendants. The deceased passed away before the agreement was executed.

23. Pursuant to the agreement, the defendants sold to the plaintiff the 2 acres at a consideration of KShs 680,000 out of which they acknowledged receiving a total KShs 510,000 in cash by the time the agreement was executed. The balance left was KShs 170,000. Since the defendants were not the registered owners of the suit property, it was anticipated by the parties that the defendants would obtain letters of administration. Indeed, clause 3 of the agreement stated that the balance of KShs 170,000 was to be “paid after succession”. Clause 4 stated that the plaintiff was to take possession of the 2 acres immediately upon signing of the agreement while clause 5 stated that the defendants were to give the plaintiff “all the documents in respect of the said land after succession and survey”. Pursuant to clause 8, parties agreed that any party in default of the agreement would surrender or forfeit 30% of the purchase price. There is thus no dispute that the plaintiff and the defendants entered into a written sale agreement dated 6th July 2009 for sale of 2 acres of land to be excised from LR No. 12431/27. The terms of the agreement are as can be seen on the face of the agreement, material aspects of which are summarised above.

24. What about the remaining 1. 25 acres? The plaintiff maintains that on 7th March 2011, a second agreement (PExb. 5) was executed between her as purchaser and the defendants as vendors in respect of an additional 1. 25 acres of land to be excised from LR No. 12431/27, thus making a total of 3. 25 acres. On the face of it, PExb. 5 states that the 1st defendant herein agreed to sell “a piece of land located at Njoro village Division Nakuru District LR No. 27” to the plaintiff. The consideration is stated as KShs 460,000 out of which KShs 160,000 had been paid as at the date of the agreement leaving a balance of KShs 300,000 which was to be paid in instalments. According to the plaintiff, she paid the KShs 300,000 in form of KShs 20,000 cash and open cheques of KShs 80,000, KShs 60,000 and KShs 150,000 drawn on co-operative bank. She produced copies of her banks statements as proof of payment. I note that the payments of KShs 80,000, KShs 60,000 and KShs 150,000 as well as the 2nd and 3rd defendants’ names are captured in the bank statements. DW1 admitted receiving some of the amounts.

25. The defendants have denied the existence of the second agreement. I however note that the second agreement was witnessed by among others Harrison M. Kamau who DW1 admits was present when the agreement dated 6th July 2009 for sale of 2 the initial acres was executed. The second agreement was further witnessed by Esther Wairimu Maina who DW1 admits is the 2nd defendant’s wife. Although DW1 denied signing the second agreement, I note that the 2nd defendant has not come forth to testify and disown his signature on the document. Similarly, although the plaintiff stated that Esther Wairimu Maina signed on behalf of the 1st defendant who claimed that she could neither read nor write, neither the 1st defendant nor Esther Wairimu Maina testified to challenge this. I further note that PW2 (the surveyor) testified that when he proceeded to the ground on 7th March 2011 to do a survey for the initial 2 acres in the presence of the plaintiff and the defendants, the plaintiff and the defendants changed their minds and asked him to demarcate an extra 1. 25 acres on top of the 2 acres.

26. The plaintiff explained that there existed a cordial and friendly relationship between her and the defendants at the initial stages of the transactions and that documentation in respect of the transactions and payments was not always formal in the first instance. Some substantial payments were also made in cash as is confirmed in the agreement dated 6th July 2009. That perhaps explains the informal nature of the agreement dated 7th March 2011.

27. I therefore find and hold that a second agreement dated 7th March 2011 was executed between the plaintiff and the defendants in respect of an additional 1. 25 acres of land to be excised from LR No. 12431/27, thus making a total of 3. 25 acres. The first issue as to whether the plaintiff and the defendants entered into agreements for sale of 3. 25 acres of land to be excised from LR No. 12431/27 is thus answered in the affirmative.

28. The second issue for determination is whether the agreements are enforceable. The defendants have argued that the agreements are not enforceable because they offend the provisions of Section 45of theLaw of Succession Act Chapter 160 Laws of Kenya and further because no consent of the land control board was obtained in respect of the transaction.

29. Section 45of theLaw of Succession Act provides:

45. No intermeddling with property of deceased person

(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall-

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

30. There is no dispute that the two agreements were executed after the deceased had passed away. There is further no dispute that the 1st defendant obtained letters of administration in respect of the deceased’s estate on 19th September 2011 and that the grant was confirmed on 23rd January 2015. In the Certificate of Confirmation of Grant (DExb. 3), the parcel of land known as LR No. 12431/27 was distributed to the 1st defendant (4. 25 acres), the 2nd defendant (5. 5 acres) and to the 3rd defendant (5. 25) acres. As I understand it, the plaintiff and the defendants were keenly aware that the agreements were subject to the defendants obtaining letters of administration. That is why “succession” is mentioned severally in the first agreement and clause 5 of the said agreement seems to anticipate that completion was to take place after succession. True to the parties’ expectation, grant was indeed obtained, albeit later than the parties appear to have expected. The agreements were thus simply a commitment of what parties would be obligated to do once grant is obtained. Put differently, there was never an intention of dealing with the estate of the deceased contrary to the law. I do not see any way in which the agreement offendsSection 45of theLaw of Succession Act.

31. Regarding the argument that the agreements are not enforceable because no consent of the land control board was obtained in respect of the transaction, I note that the parties are in agreement that no consent of the Land Control Board was sought or obtained. There is also no dispute the transaction was in respect of agricultural land. Consequently, a consent was necessary pursuant to Section 6of theLand Control Act. The Section provides:

6. Transactions affecting agricultural land

(1) Each of the following transactions that is to say—

(a) 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;

(b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;

(c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land 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.

32. Pursuant to Section 8 of the Act, the application for consent is to be made within six months of the making of the agreement. The High Court is given power to extend the six months period even where the period has expired, if sufficient reasons are given.

33. I note that one of the orders sought by the plaintiff in the plaint herein is that the court extends the period within which an application for consent of the Land Control Board by the parties herein may be made. Even though there have been varying schools of thought on whether time within which to apply for consent of the Land Control Board can be extended and the fate of an agreement in respect of which no such consent has been obtained within the prescribed period, the Court of Appeal recently stated in the case of Willy Kimutai Kitilit v Michael Kibet [2018] eKLR as follows:

A contract for the sale of land to which the Land Control Act applies is not void from inception nor is it an illegal contract. It becomes void when no application for consent of the Land Control Board is made or if made, it is refused and the appeal from the refusal, if any, has been dismissed (see Section 9 (2)). The Land Control Act prescribes the time within which the application for consent should be made to the Land Control Board but does not prescribe the time within which the Land Control Board should reach a decision or the time within which any appeal should be determined. The process from the time of the making the application to the time of the determination of the appeal, if any, may obviously take time. However, the requirement that an application for the consent should be made within six months of the making of the agreement and the provisions of Section 7 of the Land Control Act for recovery of the consideration is an indication that Parliament intended that controlled land transactions should be concluded within a reasonable time.

[23]The Land Control Act does not, unlike Section 3 (3) of the Law of Contract Act and Section 38 (2) of the Land Act save the operation of the doctrines of constructive trust or proprietary estoppel nor expressly provide that they are not applicable to controlled land transactions. Although the purpose of the two statutes are apparently different, they both limit the freedom of contract by making the contract void and enforceable. Since the doctrines of constructive trust and proprietary estoppel apply to oral contracts which are void and enforceable, in our view, and by analogy, they equally apply to contracts which are void and enforceable for lack of consent of the Land Control Board especially where the parties in breach of the Land Control Act have unreasonably delayed in performing the contract. However, whether the court will apply the doctrines of constructive and proprietary estoppel to a contract rendered void by lack of the consent of Land Control Board will largely depend on the circumstances of each particular case.

34. The above decision of the Court of Appeal which was made on 17th May 2018 constitutes the latest position taken by the Court of Appeal on this issue. I am aware of an earlier decision of the Court of Appeal in David Sironga Ole Tukai v Francis Arap Muge & 2 others Nairobi Civil Appeal No. 76 of 2014 which states that such a contract is void and that principles of equity and natural justice are not applicable. Bound by both decisions as I am, and considering that the Court of Appeal discussed the David Sironga Ole Tukai decision at length in the Willy Kimutai Kitilit case and came to a conclusion that an extension can be granted and that principles of equity and natural justice are applicable, I will go by the Willy Kimutai Kitilit case.

35. In Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLRthe Court of Appeal stated:

19. Pending the sale of all 240 plots by the respondent, the question that comes to mind is what was to be the legal status and relationship between the respondent and the appellants as purchasers who had paid the purchase price for individual plots? 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 & 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 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. … 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. …

36. As I will demonstrate further on in this judgment, the plaintiff fully paid the purchase price and discharged all her obligations pursuant to the agreements. The defendants put her in possession and even assisted her to construct on the suit property. She still remains in possession. Pursuant to clause 5 of the agreement dated 6th July 2009, defendants had the obligation of applying for consent of the land control board. They have stated categorically that they did not make the application. I see no valid reason why they did not. The disputes that arose leading to the defendants being charged in various criminal cases to not constitute any valid ground for not performing their obligations under the agreements. I find and hold that the agreements are enforceable despite the fact that no consent of the land control board was obtained. Issue number two is thus answered in the affirmative.

37. The third issue for determination is whether there was any breach of the agreements. This issue has partly been answered by the discussion above. The plaintiff’s obligation under the agreements was to pay the purchase price. The defendants have argued that there remains an outstanding sum of KShs 170,000 in respect of the purchase price stated in the agreement dated 6th July 2009. The plaintiff however maintains that she paid this sum in cash in the year 2011 in the presence of Harrison Mbugua Kamau who has sworn an affidavit to confirm that fact. The parties have a history of cash payments as can be seen in respect of the KShs 510,000 cash part payment acknowledged in the agreement dated 6th July 2009. The defendants have not demonstrated even a single demand for the KShs 170,000 if indeed it is owing. I am thus persuaded that the full purchase price of KShs 680,000 stated in the agreement dated 6th July 2009 was paid.

38. Regarding the second agreement dated 7th March 2011, the purchase price is stated as KShs 460,000 and that KShs 160,000 had been paid in cash as at the date of the agreement leaving a balance of KShs 300,000. The plaintiff stated that she paid the KShs 300,000 in form of KShs 20,000 cash and open cheques of KShs 80,000, KShs 60,000 and KShs 150,000 drawn on co-operative bank. She produced copies of her banks statements as proof of payment. As previously noted, the payments of KShs 80,000, KShs 60,000 and KShs 150,000 as well as the 2nd and 3rd defendants’ names are captured in bank statements which were tendered in evidence. DW1 admitted receiving some of the amounts while the 1st and 2nd defendants did not testify to deny receipt. Again, I take note of the parties’ history of cash payments. Consequently, I find and hold that the plaintiff fully discharged her obligation under the contract: she fully paid the purchase price.

39. What about the defendants? They were under obligation to excise 3. 25 acres from LR No. 12431/27 and transfer it to the plaintiff. So as to achieve that, they were under obligation to obtain letters of administration in respect of the deceased’s estate, which they have now obtained, even if late. As vendors, they were also under obligation to obtain all necessary consents and take all necessary steps to ensure that the plaintiff gets title to the 3. 25 acres to be excised from LR No. 12431/27. They admit that they have not sought consent of the land control board and that they have not had the suit property surveyed so as to facilitate issuance of title to the plaintiff. In fact, they state that they no longer wish to transfer any land to the plaintiff. I find and hold that the defendants are in breach of the agreements between them and the plaintiff.

40. The final issue for determination is: what reliefs are available? The plaintiff has established her case. I will therefore make orders to ensure that she gets title to the property that she purchased. Since the property is still available and the defendants are now in a position to legally complete the transaction, I see no reason to award the market value of the property which was sought as an alternative relief. The plaintiff also sought special damages of KShs 29,750. This amount was not proven and I do not therefore award it. Regarding general damages, I have found above that the defendants are in breach of the two agreements. I note that the parties had agreed at clause 8 of the agreement dated 6th July 2009 that any party in default would surrender or forfeit 30% of the purchase price. I find this to be a useful tool for assessing general damages herein. The total purchase price for the two agreements is KShs 1,140,000. I therefore award the plaintiff KShs 342,000 which is 30% of the total purchase price as general damages for breach of contract.

41. In the end, the following orders commend themselves to me. I enter judgment against the defendants jointly and severally as follows:

i. I order the defendants to specifically excise and transfer to the plaintiff 3. 25 acres from LR No. 12431/27 situated South of Njoro Town.

ii. Time within which to apply for the consent of the Land Control Board in respect of the transactions comprised in the sale agreement dated 6th July 2009 and sale agreement dated 7th March 2011 is hereby extended by a period of 6 (six) months. The extended period shall run from the date of delivery of this judgment.

iii. The defendants are hereby compelled to execute all the necessary documents and take all necessary steps to ensure completion of the transactions comprised in the sale agreement dated 6th July 2009 and sale agreement dated 7th March 2011 and to ensure that the plaintiff becomes registered proprietor of 3. 25 acres of LR No. 12431/27 situated South of Njoro Town. Such execution and such steps to be done within 30 (thirty) days from the date of delivery of this judgment. In default, the Deputy Registrar of this court to execute such documents and take such steps in the place of the defendants.

iv. Save for steps towards realisation of orders (i) to (iii) above, a permanent injunction is hereby issued restraining the defendants by themselves, their agents and/or servants from interfering in any way with the plaintiff’s quiet possession of 3. 25 acre parcel of land within LR No. 12431/27 situated South of Njoro Town.

v. KShs 342,000 being general damages.

vi. Costs of the suit are awarded to the plaintiff.

vii. Interest on (v) and (vi) above at court rates.

42. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 20th day of December 2018.

D. O. OHUNGO

JUDGE

In the presence of:

Mr Onyancha holding brief for Mr Karanja for the Plaintiff

Mr Biko holding brief for Mr Ikua for the Defendant

Court Assistant: Lotkomoi