https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1563

Gogo v Odhiambo & 2 others (Civil Appeal 126 of 2020) [2026] KECA 1563 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1563 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 126 of 2020 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 24, 2026 Between Paul Debacko Gogo Appellant and Consolate Auma Odhiambo 1st Respondent Charles Obuya Opande 2nd Respondent National Housing Corporation 3rd Respondent (Being an appeal against the Judgment and Decree of the Environment and Land Court at Kisumu (Kibunja, J.) dated 5th September, 2019inCase No. 72 of 2015) Judgment 1.The appeal before us is against the judgment and decree of the Environment and Land Court, “the ELC”, at Kisumu delivered on 5th September 2019 by Kibunja. J, in ELC Case No. 72 of 2015. 2.The genesis of the appeal is that, by way of a plaint, the appellant, Paul Debacko Gogo, instituted court proceedings against the respondents, Consolate Auma Odhiambo, Charles Obuya Opande and National Housing Corporation respectively. 3.In the plaint, the appellant pleaded that he was a close friend of the John Odhiambo Opande (the deceased), who was a former Senior Chief of Nyando location in Kisumu County. In August 1996, when the deceased’s parcel of land known as Kisumu/Wawidhi ‘A’ 11/806, (the suit property), was threatened with sale by public auction by the 3rd respondent owing to a subsisting unserviced charge in its favour, the deceased approached him to repay the outstanding loan balance in the sum of Kshs.66,664/-. In consideration thereof, the deceased undertook to transfer the title to the suit property to him. 4.The appellant further pleaded that pursuant to this oral agreement, the deceased wrote a letter to the 3rd respondent directing it to accept payments from the appellant on his behalf and that upon receipt thereof transfer the title documents in respect of the suit property to the appellant. The appellant averred that he duly paid the sum demanded, and by a subsequent letter, the 3rd respondent transmitted to him the all the title documents in respect of the suit property. He contended that the 3rd respondent however, erroneously forwarded a discharge of charge instead of a transfer by chargee document, and that thereafter the deceased fell ill and died before effecting the formal transfer of the suit property to him. 5.It was further averred that despite repeated assurances by the 1st respondent, the widow of the deceased, that she would eventually effect the transfer of the suit property to him upon obtaining a confirmed grant of letters of administration intestate, this was not to be as he later discovered that the 1st and 2nd respondents had secretly transferred the suit property into their joint names and subdivided it into three parcels, Kisumu/Wawidhi ‘A’ 11/1657, 1658 and 1659 respectively. He pleaded that these transactions were fraudulent and void, as they were undertaken whilst the charge was still in place. This then compelled the appellant to file the suit, the precursor to this appeal seeking an order of specific performance compelling the respondents to transfer the suit property to him, permanent injunction restraining the respondents from dealing with the suit property in a manner inimical to his interests, costs of the suit and interest. 6.In response, the 1st and 2nd respondents filed a joint statement of defence. They denied the existence of any valid sale agreement between the deceased and the appellant. They contended that the money paid to the 3rd respondent by the appellant was not consideration for purchase of the suit property but a friendly loan advanced to the deceased and that he surrendered the title documents of the suit property to the appellant as security for the refund of the friendly loan, which he did shortly before he passed on. They denied any fraudulent dealings in the transmission of the suit property to themselves and maintained that as administrators of the estate of the deceased, they were lawfully entitled to deal with the suit property as they did. Otherwise, they were ready and willing to refund the amount paid to the appellant by the deceased as aforesaid. 7.The 3rd respondent in its defence, admitted receipt of the payment of the loan balance on the charge from the appellant and acknowledged forwarding the title documents to the appellant. However, it denied any obligation to transfer the suit property to him. It maintained that it could not prepare and execute the transfer by chargee document as the transaction was not as a result of its exercise of statutory power of sale. It averred that its role was limited to discharging the charge upon settlement of the loan and that the suit property remained vested in the deceased’s estate. 8.During the plenary hearing of the suit, the appellant reiterated his averments in the plaint as well as his written statement he had filed. Suffice to add that the deceased explained to the appellant that if he did not assist him and the suit property was sold by the 3rd respondent in the exercise of its statutory power of sale, it would seriously dent his image and standing given his position as Chief of Nyando Location. 9.On their part, the 1st and 2nd respondents, who individually testified in their defence also reiterated and expounded on their averments in their statement of defence as well as their written statements they had filed. We need not therefore rehash the same. The only addition being that,according to them, the appellant had no proprietary interest in the suit property and that his claim was therefore unfounded. 10.The 3rd respondent testified through its legal officer Pamela Atieno Ambok, who also merely reiterated and expounded on the averments in its defence as well as her written statement. Suffice to add that she maintained that the 3rd respondent’s role was limited to discharging the charge upon settlement of the loan and that the suit property remained vested in the deceased’s estate. 11.After considering the evidence on record, the trial court reached the conclusion that the appellant had failed to prove his claim. It held that the appellant’s testimony, though consistent, did not establish the existence of a valid and enforceable sale agreement between himself and the deceased. The letter, which the appellant relied upon, was interpreted by the court not as an agreement for sale but as a mere instruction to the 3rd respondent to forward the title documents to the appellant upon settlement of the loan. 12.It accepted the respondents’ position that the money paid by the appellant to the 3rd respondent was in the nature of a friendly loan advanced to the deceased, and not consideration for purchase of the suit property. The trial court further emphasized that under section 6 of the Land Control Act, transactions involving agricultural land require consent of the Land Control Board, and since no such consent had been obtained, the alleged agreement was void for all intents and purposes. The trial court further found that the appellant’s reliance on the doctrine of constructive trust and proprietary estoppel could not override the statutory requirement aforesaid. 13.In the result, the appellant’s suit was dismissed. However, the court acknowledged that the appellant had indeed paid Kshs.66,664/- to the 3rd respondent on behalf of the deceased. It therefore ordered the 1st and 2nd respondents, as administrators of the estate of the deceased, to refund the said sum to the appellant together with interest at court rates from 19th August 1996 until payment in full. 14.Aggrieved by the judgment and decree aforesaid, the appellant filed this appeal on grounds that the trial court erred in law and fact in failing to accept the appellant’s unchallenged evidence on the verbal agreement with the deceased; in accepting the 1st and 2nd respondents’ testimony that the payment constituted a friendly loan; giving an unusual interpretation of the deceased’s letter; in failing to appreciate that his own finding of fraudulent transfer by the 1st and 2nd respondents constituted proof of the appellant’s purchaser interest; in failing to consider corroborating evidence and testimony of the appellant together with the respondents’ conduct and the 3rd respondent’s forwarding of documents; in failing to consider the pleadings, testimony and submissions on the doctrine of equitable constructive trust and proprietary estoppel; dismissing the case on the lack of Land Control Board consent; and in finding that the 1st and 2nd respondents had an obligation to refund the sum of Kshs.66,664/- with interest when it was not pleaded. 15.When the appeal was called out for plenary hearing, Mr. Ragot, learned counsel appeared for the appellant while Mr. Mwesigwa, learned counsel appeared for the 3rd respondent. There was no representation by the 1st and 2nd respondents despite evidence of service of the hearing notice on them by court. Counsel for the appellant submitted that the appellant’s oral agreement with the deceased was corroborated by the two letters dated 12th August 1996 and 12th September 1996. He argued that the trial court erred in interpreting the word “transfer” in the deceased’s letter as “forward”, thereby disregarding the appellant’s unchallenged testimony and the corroborating admissions of the respondents. He maintained that the deceased’s instructions to the 3rd respondent to transfer the title deed to the appellant upon payment of Kshs.66,664/- could only mean transfer of ownership of the suit property to the appellant. 16.He maintained that the appellant proved his case on the balance of probabilities as required. He relied on section 3(2) of the Evidence Act, which defines proof of fact, and cited Charles Kavai v. Boniface Mutunga [2020] eKLR, where Odunga J. (as he then was) emphasized that proof on a balance of probabilities requires the court to believe a fact exists or consider its existence so probable that a prudent person would act upon it. In addition, he cited Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another [2015] eKLR, where the Court of Appeal, relying on Denning J. in Miller v. Minister of Pensions [1947] 2 ALL ER 372, held that proof on a balance of probabilities requires a reasonable degree of probability, not as high though as in criminal cases which burden the appellant had discharged. 17.Concerning land Control Board consent, counsel submitted that the appellant’s case was anchored on the equitable doctrine of constructive trust and proprietary estoppel, which operates outside the strictures of section 6 of the Land Control Act. He cited Charles Kandie v. Mary Kimoi Sang [2017] eKLR, where this Court defined constructive and resulting trusts as equitable remedies imposed to prevent unjust enrichment. He also referred to Macharia Mwangi & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR, where this Court again held that possession and development of land without Land Control Board consent created a constructive trust, and Willy Kimutai Kitilit v. Michael Kibet [2018] eKLR, where the Court ordered specific performance of a sale agreement despite lack of consent, recognizing overriding equitable interests. 18.He argued that the deceased’s intention, evidenced by the letters and corroborated by the respondents’ conduct, was to sell the suit property to the appellant, and that the respondents fraudulently interfered with the suit property by misleading the Land Registrar into registering it in their names. He maintained that the appellant had proved a constructive trust and or proprietary estoppel and was therefore entitled to specific performance. 19.On costs, counsel submitted that the respondents should bear the costs of the appeal, as they had fraudulently interfered with the suit property and misled the court. In conclusion, counsel urged this Court to allow the appeal, set aside the judgment and decree of the trial court, and grant the reliefs sought in the memorandum of appeal. 20.On his part, counsel for the 3rd respondent indicated that the 3rd respondent had no particular position in the appeal. Indeed, the appellant was even categorical both in his written submissions as well as oral highlights that the appeal had nothing to do with it. 21.In discharging our mandate in this appeal, we begin from the premise that this is a first appeal. Rule 31(1)(a) of the Court of Appeal Rules obligates us to re-evaluate the evidence adduced before the trial court and draw our own conclusions and inferences of fact and law, while bearing in mind that we did not have the added advantage of seeing and hearing the witnesses as they testified and we must therefore give due allowance for that. See. Kenya Ports Authority v Kuston (Kenya) Limited (2009) 2EA 212. 22.Against that backdrop, three issues arise for determination in this appeal. First, whether there was a valid agreement for sale of the suit property between the appellant and the deceased. Second, whether the absence of consent of the Land Control Board vitiated the alleged agreement and disentitled the appellant to the reliefs sought and finally, whether the judgment of the ELC ought to be disturbed. In other words, whether the appellant proved his case in the ELC to the required standard. 23.From the outset section 3(3) of the Law of Contract Act, provides that no suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by the parties, and attested. Section 3(7) of the same Act makes it clear that this requirement applies only to contracts made after the commencement date of the subsection, namely 1st June 2003. 24.Prior to the amendment, the subsection permitted enforcement of contracts for disposition of interests in land where there was either a written memorandum signed by the party to be charged, or where the purchaser had undertaken acts of part performance such as possession or continuing in possession in furtherance of the contract. The proviso was designed to allow equity to intervene where strict compliance of the requirement of written agreement was absent, but the purchaser had nonetheless altered his position in reliance on the agreement of whichever type. 25.In the present appeal, the appellant relied on verbal arrangements allegedly entered into between himself and the deceased in August 1996, evidenced by the deceased’s letter dated 12th August 1996 instructing the 3rd respondent to transfer the title deed of the suit property to the appellant upon payment of Kshs.66,664/- and the subsequent letter dated 12th September 1996 by which the 3rd respondent forwarded the original title documents as an agreement for sale. 26.However, neither of these letters satisfies the requirements of section 3(3) prior to or even after the amendments. The letter of 12th August 1996 was not a contract of sale signed by both parties and attested; it was merely an instruction to a third party, that is, the 3rd respondent. The letter of 12th September 1996 emanated from the 3rd respondent, not the deceased, and only transmitted documents to the appellant in accordance with the instructions of the deceased without effecting a transfer. The appellant’s oral testimony, though consistent, cannot override the statutory requirement. As this Court emphasized in Kariuki v. Kariuki [1983] KLR 225, the absence of a written, signed, and attested contract is fatal to its enforcement. 27.Accordingly, and even under the pre-2003 formulation of section 3(3) of the Law of Contract Act, the appellant failed to bring himself within the equitable exceptions. The evidence showed that the deceased remained the registered proprietor of the suit property until his death, and the appellant did not establish that he ever took possession of the suit property or carried out acts consistent with his possession. His testimony was limited to the re-payment of the loan and receipt of title documents, but he did not demonstrate occupation, cultivation, residence, or any other act of possession in furtherance of the alleged contract that is to say part performance. Indeed, the respondents maintained that the suit property remained under the deceased’s control, and the appellant did not rebut this position. The trial court was therefore correct in holding that the arrangement did not constitute a valid and enforceable contract for the sale of the suit property. 28.We are satisfied just like the trial court, that the letters dated 12th August 1996 and 12th September 1996, together with the appellant’s oral evidence respectively, did not constitute a valid and enforceable contract for sale of land within the meaning of section 3(3) of the Law of Contract Act prior to or after the amendment. 29.The appellant faults the trial court for dismissing his claim solely on the ground that no consent of the relevant Land Control Board had been obtained. He submitted that the arrangements between himself and the deceased amounted to an enforceable agreement, and that equity through constructive trust and or proprietary estoppel should have been invoked to come to his aid. The trial court, however, did not expressly address this statutory framework, but concluded that the absence of the said consent rendered the transaction void. The appellant thinks that the trial court failed to appreciate that his payment of the loan on behalf of the deceased, coupled with the deceased’s express instructions in the letter dated 12th August 1996 directing the 3rd respondent to transfer the title deed to him, amounted to circumstances giving rise to a constructive trust and or proprietary estoppel. He argued that equity should intervene to prevent the respondents, as administrators of the estate of the deceased, from unjustly enriching themselves by denying him the benefit of the arrangement after he had fully performed his part. 30.The law at the time was clear. Section 6(1) of the Land Control Act, provides:“Each of the following transactions – (a) the sale, transfer, lease, mortgage, exchange, partition, or other disposal of or dealing with any agricultural land – 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.” 31.Courts have consistently affirmed and emphasized the mandatory nature of this provision. In Kariuki v. Kariuki (supra), the Court was categorical that failure to obtain consent of the Land Control Board renders such transactions void for all intents and purposes. More recently, the Supreme Court in Dina Management Limited v. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) underscored that transactions tainted by illegality or lack of statutory compliance cannot be cured by equitable doctrines, and that indefeasibility of title under section 26(1) of the Land Registration Act cannot be invoked where acquisition is founded on illegality. 32.While earlier decisions such as Macharia Mwangi & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR (CA) and Willy Kimutai Kitilit v. Michael Kibet [2018] eKLR (CA) recognized constructive trust and proprietary estoppel as equitable doctrines capable of mitigating the harshness of section 6(1), those doctrines, it would appear, can no longer override the express statutory requirement according to the Supreme Court decision. 33.From our own re-evaluation of the record, it is clear that the appellant did not prove the existence of a constructive trust or any equitable interest capable of displacing the statutory bar under section 6(1) of the Land Control Act. His evidence was confined to the payment of Kshs.66,664/- to the 3rd respondent and receipt of certain title documents, but he did not demonstrate possession of the suit property, nor acts in furtherance of the alleged contract. The appellant did not sufficiently displace the 1st and 2nd respondents’ contention that, the payment was a friendly loan extended to the deceased and the surrender of the title documents to the appellant through 3rd appellant was to act as security for the refund of the amount paid to the 3rd respondent by the appellant on behalf of deceased. Indeed, they asserted that by the time of his death, the deceased had refunded the amount. 34.Accordingly, we are satisfied that constructive trust or proprietary estoppel was not proved, and the trial court was correct in holding that the absence of Land Control Board consent rendered the alleged transaction void for all intents and purposes under section 6(1) of the Land Control Act. 35.As to whether the judgment of the trial court ought to be disturbed, we are satisfied that the trial court carefully analyzed the pleadings, the viva voce evidence tendered and the law and correctly concluded that the appellant had failed to prove a valid and enforceable sale agreement. The order for refund of Kshs.66,664/- with interest was a fair and just resolution in the circumstances. Indeed the 1st and 2nd respondents had made such an offer. 36.Accordingly, the appeal is dismissed in its entirety. There shall be no order as to costs of this appeal, as the 1st and 2nd respondents did not participate in the appeal. As for the 3rd respondent, it had no position in the appeal. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.......................................E.C. MWITAJUDGE OF APPEAL.......................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR