[2015] KEHC 901 (KLR)
The court found that the plaintiff, having paid the full purchase price and been put into possession of the land for over eleven years, acquired an equitable interest by way of a constructive trust. This trust was not subject to the Land Control Board consent requirement. The defendant's subsequent actions,...
Source-derived case information.
- Citation
- [2015] KEHC 901 (KLR)
- Parties
- Plaintiff: John N. Sitati; Defendant: Moses M. Walubengo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2014
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- SN Mukunya
- Legal Topics
- Constructive Trust, Land Sale Agreement, Land Control Act, Transfer of Land, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John N. Sitati
Plaintiff
Moses M. Walubengo
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to transfer of one acre from Ndivisi/Muchi/661 based on the sale agreement and occupation.
- 2 Whether the absence of Land Control Board consent invalidates the transaction or creates a constructive trust in favour of the plaintiff.
- 3 Whether the defendant is obligated to facilitate the transfer despite the land being charged to a bank and co-owned.
Ratio Decidendi
The court found that the plaintiff, having paid the full purchase price and been put into possession of the land for over eleven years, acquired an equitable interest by way of a constructive trust. This trust was not subject to the Land Control Board consent requirement. The defendant's subsequent actions, including charging the land to a bank or the absence of a co-owner's signature, did not defeat the plaintiff's equitable right. The court ordered that the one acre occupied by the plaintiff be hived off from Ndivisi/Muchi/661 and transferred to him, and awarded costs and interest to the plaintiff.
Court Disposition
Judgment for the plaintiff.
Orders
- One acre to be hived off from Ndivisi/Muchi/661 and transferred to the plaintiff.
- Plaintiff awarded costs of the suit and interest from the date of judgment.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND & ENVIRONMENT CASE NO.44 OF 2014
JOHN N. SITATI……………………………………………………PLAINTIFF
VERSUS
MOSES M. WALUBENGO…………………………………..…..DEFENDANT
JUDGEMENT
[1] The Plaintiff’s claim against the defendant is that on 1st November, 2004 he voluntarily entered into an agreement with the defendant for the sale of 1 acre of land from the plaintiff’s parcel of land Ndivisi/Muchi/661 at an agreed purchase price of Ksh.80,000 which he paid in full and on receipt of the said purchase price the defendant gave him vacant possession and the plaintiff has occupied that land since.
[2] The plaintiff avers that the defendant has since declined to facilitate the transfer of the land to the plaintiff and he now prays for an order from the Court directing the defendant to transfer one acre from Ndivisi/Muchi/661 to the plaintiff. He also seeks the costs of the suit and interests.
[3] The defendant filed a statement of defence on 15th of September 2014 and argued that the land sale agreement was rendered null and void for all purposes by the provisions of land control Act and that the Plaintiff is only entitled to a refund of the purchase price. He set out the particulars that;
(a) the land sale agreement was never signed by the defendant’s joint tenant one Patrick Kisaka.
(b) that the title is charged to the standard Bank Limited to secure a loan facility.
(c) that the land sale agreement became null and avoid for all purposes.
[4] This case was fixed for hearing on 30/9/2015, a hearing notice was served on the defendant’s advocate Kraido & Company in their offices in Bungoma at Bungoma Teachers Plaza on 7/8/2015 for hearing on 30/9/2015. On the day of hearing only the plaintiff attended. He gave evidence how he purchased the land in the year 2004 and paid the full purchase price of Kshs.80,000/- vide an agreement of sale dated 1/11/2004. He produced the agreement for sale and the acknowledgement of the purchase price. He said that he never attended the Land Control Board for the requisite consent because the defendant refused to do so.
He stated that he lives on the land with his children since 2004. He requested the Court to assist him get the title deed.
[5] The plaintiff in this case purchased the land on 1st November 2004 and paid the purchase price all at once. He has lived on the suit land since that date. It is now 11 years since the occupation of the one acre out of Ndivisi/Muchi/661. When the defendant entered into an agreement with the plaintiff on 1st November 2004, the plaintiff took his money Kshs.80000 as purchase price, put the plaintiff into possession of the entire one acre of his land Ndivisi/Muchi/661 and allowed him to stay therein for a period of eleven (11) years from then till now, a constructive trust was created in favour of the plaintiff. This trust was not subject to Land Control Board consent. Any subsequent charge to any bank of land parcel Ndivisi/Muchi/661 was subject to the said trust of the said one acre.
[6] I find that one acre in the land Ndivisi/Muchi/661 which has been occupied by the plaintiff from 1st November 2004 has been held by the plaintiff pursuant to a constructive trust in favour of the plaintiff. That, that trust should be determined and land parcel Ndivisi/Muchi/661 should be subdivided so that the one acre occupied by the plaintiff should be hived off so that the plaintiff herein obtains a title for the said one acre thereof.
The plaintiff shall have the costs of this suit and interests of the same from the date of judgement herein.
It is so ordered.
DATED at BUNGOMA this 2nd day of December, 2015
S.N. MUKUNYA
JUDGE