https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4087

Kibukwoi v Mugo (Environment and Land Case 298 of 2017) [2026] KEELC 4087 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEELC 4087 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case 298 of 2017 MAO Odeny, J July 3, 2026 Between Joshua Kiprono Kibukwoi Plaintiff and Mary Wanjiku Mugo Defendant Judgment 1.By an Amended Plaint dated 1st September, 2022, the Plaintiff sued the Defendant seeking the following orders:a.An order compelling the defendant to transfer one acre out of all that parcel of land known as Kampi Ya Moto Block 3/212 to the plaintiff.b.An order of a permanent injunction to restrain the defendant by herself, her servants, agents and or employees from alienating trespassing unto and/or interfering in any manner with the plaintiff’s portion measuring one acre or thereabouts out of all that parcel of land known as Kampi Ya Moto Block 3/212.c.In the alternative to the prayers (a) and (b) above a declaration that the failure of the defendant to transfer and hand over vacant possession of the purchased property to the defendant amounts to breach of contract and the Honourable court should order for a refund of the paid purchase price and general and exemplary damages for breach of contract.d.Costs of the suite.Any further relief this court may deem fit to grant to meet the ends of justice. 2.The Defendant filed her Amended Statement of Defence dated 31st October, 2022, where she denied the contents of the Amended Plaint. Plaintiff’s Case 3.PW1 Joshua Kiprono Kibukwoi adopted his statement dated 9th June, 2017, as his evidence in chief and testified that paragraph 8 of the statement should read 2012. It was his evidence that he bought the suit land from the late Jackson Mugo Mathai for a consideration Kshs.200,000/= which he paid in two instalments of Kshs.150,000/= and Kshs.50,000/= respectively, through Mindo & Company Advocates. 4.PW1 testified that they had an oral agreement with Mr. Jackson Mugo who was to draft the agreement after payment of the purchase price. It was his testimony that Jackson Mugo (deceased) died before he signed the agreement. 5.PW1 produced his list of documents dated 9th June, 2017 as Pex No. 2 to 6, and a further supplementary list of documents dated 11th May, 2022, as Pex. No. 7 and 8. He urged the court to grant the orders as prayed in the Plaint. 6.Upon cross-examination by Mr. Waiganjo, PW1 stated that he lived in Rafiki Farm, which belonged to Jackson Mathai (deceased), measuring more than 500 acres. He further stated that he lived on plot No. 55, which he had a title to, and that Plot No. Kampi Ya Moto/312 the suit land measured 12 acres, of which he had bought 1 acre. 7.PW1 admitted that he did not have a written agreement and that they had not gone to the Land Control Board. He further stated that he paid Kshs.200,000/= cash to the deceased at Mindo Advocate’s office, after which the advocate informed the deceased to come later for the drafting of the agreement. PW1 also admitted that the deceased never signed any acknowledgment of the purchase price, but the advocate issued the receipt. 8.It was PW1’s evidence that he bought the first Plot No. 55 from the deceased and not from Muigai Commercial Agencies and had paid Kshs.150,000/= on 14th December, 2006 to Mindo Advocates and Kshs.50,000/= on 22nd January, 2002. 9.Upon re-examination by Ms. Cheloti, PW1 stated that they were to draft the agreement after payment of the last instalment of the purchase price but the deceased died before they did so. Further, the Defendant was aware that the suit parcel had been sold to him. Defendant’s Case 10.DW1 John Muthai Mugo adopted his witness statement dated 11th May 2022 as his evidence in chief, and testified that the Defendant is his mother. It was his testimony that when his father died, the Plaintiff came to their home claiming that their late father had sold to him land, but PW1 had no evidence that showed that he bought the land from his father. DW1 also stated that the Plaintiff claimed that he had paid Kshs. 200,000/ to Mindo Advocate but had no evidence of the same. 11.Upon cross examination, by Ms Cheloti, DW1 confirmed that Mr. Mindo Advocate was his father’s lawyer and that he would prepare sale agreements, which he was aware of. Further, when they had a meeting with the Plaintiff, he never produced any sale agreement and was not aware of a letter which stated that his father had sold the suit land to the Plaintiff. 12.It was DW1’s testimony that the Plaintiff had placed a restriction on 10 acres of the suit property which was later removed as he could not confirm the exact acreage he claimed. He stated that they had a case before the Land Registrar who found in a ruling dated 18th February, 2014, that the Plaintiff had bought land from the deceased. 13.DW1 was referred to the payment receipts dated 14th December, 2006, for Kshs.150,000/= and 22nd January, 2007, for Kshs.50,000/= being payment of a portion of one acre of Block 3/212 and a letter dated 14th July, 2009, by Mindo Advocate produced as Pex No. 9, and stated that it did not indicate that his father received the money. 14.On re-examination, he stated that the letter was written after his father had passed on, and he did not know the purpose for which Mindo Advocate received the monies indicated in the receipts. DW1 also testified that the Advocate never stated at the Land Registrar’s meeting, that he had given his father the purchase price. 15.DW2, Mary Wanjiku Mugo adopted her witness statement dated 11th May, 2022, as her evidence in chief, and testified that she is the wife of the late Jackson Mugo Mathai, who owned the suit land. It was her evidence that she was not aware whether the deceased sold a portion of the land to or paid Kshs.200, 000/=. 16.On cross-examination, DW2 admitted that she saw the Plaintiff at the DCI’s office, but was not aware whether the husband had sold to the Plaintiff another parcel of land. However, she confirmed that Mr. Mindo Advocate was her late husband’s lawyer who would prepare sale agreements for their parcels of land. DW2, did not deny that the land had been sold, all she wanted was a sale agreement, and she was not ready to refund the purchase price. 17.Upon re-examination, she stated that she neither knew the person who was paid the money nor seen the sale agreement. Plaintiff’s Submissions 18.Counsel for the Plaintiff filed his submissions dated 11th March, 2026, and identified the following issues for determination:a.Whether the Plaintiff purchased one acre of land from the deceased.b.Whether payment made through the deceased’s advocate constitutes valid payment to the deceased and whether the absence of a written agreement defeats the Plaintiff’s claim.c.Whether the Plaintiff has acquired an equitable interest in the suit property.d.Whether in the alternative the Plaintiff is entitled to a refund of the purchase price together with damages for breach of contract.e.Whether the Plaintiff is entitled to the reliefs sought. 19.On the first issue, as to whether the Plaintiff purchased one acre of land from the deceased, counsel submitted that the Plaintiff purchased the land for Kshs. 200,000/ from the deceased, provided documentary evidence in support of this, including receipts from the deceased advocate, letters from the advocate and a village elder, and a determination by the Land Registrar. 20.It was counsel’s further submission that the Defendant did not challenge the documents as produced by the Plaintiff but denied generally without any documentary evidence. 21.On the second issue, as to whether he submitted that an advocate acts as an agent of their client, thus the payment made to the advocate was legally deemed as payment to the client, counsel submitted that the letter dated 14th July, 2009, confirmed that the Plaintiff made payment towards purchase of the land. 22.Counsel argued that the lack of a written sale agreement as required by Section 3(3) of the Law of Contract Act, ought not to be used as a provision to perpetrate injustice, and relied on the cases of Willy Kimutai Kitilit V Michael Kibet [2018] eKLR, and Macharia Mwangi Maina & 87 Others V Davidson Mwangi Kagiri [2014] eKLR. 23.On the issue as to whether the Plaintiff has acquired an equitable interest in the suit property, counsel submitted that equity regards as done that which ought to be done, making the estate of the deceased a trustee of the land for the Plaintiff, and relied on Section 28(b) of the Land Registration Act, which recognizes constructive trusts as overriding interests that bind registered proprietors. 24.According to counsel, the Defendant failed to call the advocate as a witness to shed light on the confirmation letter and receipts issued to the Plaintiff and relied on the case of Trust Bank Limited V Paramount Universal Bank Limited & 2 Others [2009] eKLR. 25.On the fourth issue, as to whether the Plaintiff is entitled to the alternative prayer for refund of the purchase price together with damages for breach of contract, counsel argued that the Defendant being the administrator of the estate, breached the contractual obligations by transferring the entire parcel to herself and refused to honor the transaction. Counsel submitted that retaining both the land and the purchase money would amount to unjust enrichment, and relied on the cases of Hadley V Baxendale (1854) 9 Exch 341 and Samuel Kamau Macharia & Another V Kenya Commercial Bank & 2 Others [2012] eKLR. 26.On the final issue, counsel submitted that based on the overwhelming documentary evidence and equitable principles, the court should uphold constructive trust and proprietary estoppel to prevent unfair enrichment and protect the Plaintiff having acted in good faith. Defendant’s Submissions 27.Counsel for the Defendant filed submissions dated 2nd April, 2026, and submitted that the Plaintiff in his amended Plaint did not plead trust but attempted to introduce the legal doctrines of constructive trust and principles of equity at the submission stage, and relied on Order 2 Rule 4 (1) and (2), 6 and 9 of the Civil Procedure Rules and the case of Gandy V Gaspair [1956] EACA and Civil Appeal No. 219 of 1998 Galaxy Paints Company Ltd V Falcon Guards Ltd. 28.Mr. Waiganjo submitted that the court ought to apply the doctrine of equity in the present case since the Plaintiff did not plead constructive trust and that there was no evidence that the Defendant’s deceased’s husband acknowledged receipt of the purchase price, further that the Plaintiff never took possession of the suit parcel. 29.Counsel relied on Section 3(3) of the Law of Contract Act and Section 38 of the Land Act and submitted that there was no contract for sale of the suit land hence the suit should be struck out for being incompetent. Counsel further relied on the cases of Daudi Ledama Morintat V Mary Christine Karie & 2 others [2017] KEELC 2998 (KLR) and Silverbird Kenya Limited V Junction Limited & 3 Others [2013] KEHC 3545 (KLR). Analysis And Determination 30.The issues for determination are whether there was a sale agreement between the Plaintiff and the deceased and whether the plaintiff is entitled to an order of specific performance for transfer of the suit land or the alternative prayer for refund and general and exemplary damages for breach of contract. 31.The Plaintiff’s case was that he bought one acre of land from Jackson Mugo Matha (deceased) out of Kampi ya Moto/Block 3/212, and paid the full purchase price of Kshs.200,000/= in two installments for which receipts were issued by the deceased’s lawyer. 32.The Plaintiff claims that the Defendant refused to transfer the said parcel to him on the basis that there was no sale agreement. PW1 stated that a constructive trust arose out of the transaction and therefore he had overriding interests over the said parcel. 33.The Defendant contends that there was no sale agreement between the Plaintiff and the deceased and that the deceased had not acknowledged receipt of the purchase price. According to the Defendant, the Plaintiff did not plead constructive trust in his amended Plaint and therefore he was not entitled to the same. 34.It is not in dispute that there was no written sale agreement between the Plaintiff and the deceased, however, the Plaintiff claimed that they entered into an oral agreement with the deceased. It is also not in dispute that the Plaintiff adduced evidence in the form of receipts from the deceased’s advocate Mindo that confirmed payment of the full purchase price. Notably, the Defendant never challenged the said receipts. 35.It was DW1 and DW2’s testimony that Mr. Mindo was their father’s advocate who would prepare sale agreements for his properties. In addition, DW1 confirmed during cross-examination that the Land Registrar’s ruling delivered on 18th February, 2014, held that the Plaintiff had bought land from the deceased. DW2 admitted that the suit parcel had been sold, but only needed proof of the sale agreement, which the Plaintiff did not have. 36.Section 3 (3) of the Law Contract Act provides that:“no suit shall be brought upon a contract for the disposition of an interest on land unless the contract upon which the suit is founded is in writing and is signed by all the parties thereto and their signatures attested by a witness.” 37.It is not in dispute that the claim by the Plaintiff is based on an alleged oral agreement for sale of the suit land having admitted that there was no written agreement between him and the deceased. 38.By virtue of Section 3 (supra), an oral agreement for sale of land is not valid, however, in the instant case; it is not in contention that the Plaintiff paid the consideration for the suit parcel. If the agreement were done before the amendment of the Law of Contract Act, which commenced on 1st June, 2003, then an oral agreement would have been valid. 39.Prior to the amendment of Section 3(3) of the Law of Contract Act in 2003, the subsection read as follows:(3)No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-(1)Has in part performance of the contract taken possession of the property or any part thereof; or(11)Being already in possession continues in possession in part performance of the contract and has done some other act in furtherance of the contract.” 40.It was the Plaintiff’s case that the deceased having promised to draft the sale agreement after payment, unfortunately passed on before the same was drafted. In the English Court of Appeal case of Yaxley V Gotts [2000] Ch. 162, the court concerning oral agreements held as follows:“…an oral agreement whereby the purchaser of a house promised to grant another, in exchange for materials and services supplied an interest in the property, though void and unenforceable under Section 2 of the Act of 1989, was still enforceable on the basis of constructive trust and Section 2 (5) in circumstances where, previously, the doctrine of part performance or proprietary estoppel might have been relied upon …” 41.Similarly in the case of Macharia Mwangi Maina & 87 Others V Davidson Mwangi Kagiri [2014] eKLR; the court explained the principle of constructive trust entails by citing with approval the case of:“In Yaxley – vs- Gotts & 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.” 42.The evidence shows that there was a common intention between the Plaintiff and the deceased on the sale of the suit land. The Plaintiff went ahead and paid the purchase price in full, which is evident from the receipts produced dated 14th February, 2006 and 22nd January, 2007, respectively. 43.In the case of Hatayan & another V Al-Heidy & 5 others (Civil Appeal 51 of 2014) [2015] KECA 713 (KLR) the court held that:“…A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. (see Black’s Law Dictionary) (Supra). It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust.” 44.Further, in the case of Criticos & another V AIC Makutano & 67 others [2026] KEELC 3529 (KLR) the court under paragraph 66 found that:“ 66.Equitable relief does not issue as of right where compensation is adequate. The principal coercive reliefs sought by the Plaintiffs a permanent injunction and an order of eviction are equitable in nature, and equitable relief does not issue as of course.” 45.The Plaintiff’s amended plaint dated 1st September, 2022, confirms that the Plaintiff prayed for an order of permanent injunction and an alternative prayer that failure by the Defendant to transfer the suit parcel and give vacant possession amounted to breach of contract. He also prayed for refund of the purchase price. The evidence on record indicate that the Plaintiff purchased the suit parcel from the deceased and the Defendant failed to transfer the same to him. It would be unjust and inequitable to allow her retain the one acre that had been sold by the deceased to the Plaintiff. 46.Similarly in the case of Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR) (supra), the Court of Appeal held as follows:“Thus, since the current Constitution has by virtue of Article 10(2) (b) elevated equity as a principle of justice to a constitutional principle and requires the courts in exercising judicial authority to protect and promote that principle, amongst others, it follows that the equitable doctrines of constructive trust and proprietary estoppel are applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board.” 47.The Plaintiff has never been in possession of the suit parcel and that the Defendant has been the registered owner of the suit parcel since 2012. The alternative prayer for refund of the purchase price, plus interest from the date of payment with costs of the suit would adequately compensate him. 48.The plaintiff fulfilled his part of the bargain but the defendant failed to do so. In the case of Millicent Perpetua Atieno Vs Louis Onyango Otieno (2013) e KLR, the Court of Appeal quoted with approval Halsbury's Law of England, Volume 12, 4th Edition at paragraph 1183 on the type and measure of damages recoverable by a purchaser upon breach by a seller of land, held as follows:“Where it is the vendor who wrongfully refuses to complete the measure of damage is similarly, the loss incurred by the purchaser as the natural and direct result of the repudiation of the contract by the vendor. These damages include the return of any deposit paid by the purchaser with interest, together with expenses which he has incurred in investigating title, and other expenses within the contemplation of the parties, and also, where there is evidence that the value of the property at the date of repudiation was greater than the agreed purchase price, damages for loss of bargain......” 49.It is clear from the general law of contract that it did not provide for general damages as a remedy for breach of contract. Having considered the pleadings, evidence, and submissions of counsel, I find that the plaintiff and the defendant entered into a sale agreement for the purchase of the suit plot, that the plaintiff paid the purchase price in full and the Plaintiff produced the payment receipts. The Plaintiff is therefore entitled to a refund of the purchase price of Kenya shillings 200,000/ together with interest from the date of payment of the purchase price plus costs of the suit. 50.Defendant to pay costs of the suit. DATED, SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF JULY 2026.M. A. ODENYJUDGE