Malinda v Mbaka (Being sued as the legal representative and administrator of the estate of Jane Muthoni Mbaka (deceased)) (Environment & Land Case 475 of 2017) [2022] KEELC 14708 (KLR) (7 November 2022) (Judgment)
Neutral citation:
[2022] KEELC 14708 (KLR)
Republic of Kenya
Environment & Land Case 475 of 2017
CA Ochieng, J
November 7, 2022
(Formerly Makueni ELC. No. 370 of 2017 and Machakos CMCC No. 1053 of 2013)
Between
Caroline Mumbua Malinda
Plaintiff
and
Ann Mwikali Mbaka
Defendant
Being sued as the legal representative and administrator of the estate of Jane Muthoni Mbaka (deceased)
Judgment
1.By a Plaint dated the December 21, 2011 which was amended on March 7, 2016, the Plaintiff prays for Judgment against the Defendant for:1.An order of specific performance of the said agreement directing the Defendant to specifically execute and transfer title number Nzaui/Nziu/940 measuring Eight (8) acres to the Plaintiff within a period of Fourteen (14) days, failure whereof, the transfer be executed by the Executive Officer.2.A declaration that the period of Ninety (90) days contemplated under Clause D within which to effect the transfer has not expired.3.An order directing the parties to appear before the relevant Land Control Board to seek for consent to transfer Title Number Nzaui/Nziu/940 in favour of the Plaintiff within 90 days and the balance of the purchase price be paid upon delivery of the completion documents including the consent of the Land Control Board and a signed Transfer in respect to the suit property.4.In the alternative general damages for breach of contract and a refund to be ascertained by a valuer to cover the current market value, improvements and developments made thereon to the Plaintiff.5.That the parties be at liberty to apply.6.Costs of the suit and interest.7.Any other relief that this Honourable Court may deem fit and just to grant.
2.The Defendant filed a Defence including Counter-claim where she insisted that the Plaintiff breached the Sale Agreement and was not entitled to the orders sought. She prayed for the suit against her to be dismissed with costs and Judgment entered in her favour as per the Counter-claim for:a.A declaration that the Sale Agreement dated November 27, 2008 is a controlled transaction which can no longer be enforced for lack of the prerequisite consents and the Plaintiff is only entitled to refund of the payments which are proved.b.An order that the Plaintiff do immediately unblock the access road passing through the entire land parcel which was originally known as title No Nzaui/Nziu/371 and serving all the parcels that resulted after subdivision.c.General Damages for breach of the terms of the transaction.d.Interest on (b) above and costs of the suit.
3.The Plaintiff filed a Reply to Defence and Defence to Counter-claim denying the averments in the Counter-claim. She further denied blocking the access road serving Nzaui/Nziu/371.
4.The matter proceeded for hearing where the Plaintiff had four witnesses while the Defendant called one witness.
Evidence of the Plaintiff
5.The Plaintiff claims she entered into a Sale Agreement dated the November 27, 2008 (hereinafter referred to as the ‘Sale Agreement’), with the Defendant for the purchase of eight (8) acres of land, being a portion from Nzaui/Nziu/920. Further, that the purchase price was Kshs 200,000 per acre and she paid a total of Kshs 1,441,400 but the Defendant declined to transfer the land to her. It was PW1’s testimony that the Defendant allowed her to take possession of the said land and developed it. She explained that the Defendant had declined to obtain consent of the Land Control Board to enable her transfer the land to her, and acquire Title Deed to that effect. She further testified that it is the Defendant who instructed a surveyor and undertook subdivision of land parcel number Nziu/Nzaui/920. Further, she now claims Nziu/ Nzaui/940 which is a resultant subdivision therefrom. PW1 further testified that she did not block the access road as the same was opened in 2014. In support of her testimony she produced the following documents as exhibits: Sale Agreement dated November 27, 2008; Demand Notice; Copy of Reconciliation and Notice confirming payments dated the November 24, 2009; Copies of Payment Cheques; Copy of Receipt for Survey of Nzavi/Nziu/920; Copy of Receipt for Amendment of RIM Nzavi/Nziu/ 920; Copy of Application for consent in respect to Nzavi/Nziu/920; Copy of Consent of the Land Control Board in respect to Nzavi/Nziu/920; Copy of Extract Map in respect to Nzavi/Nziu/920; Copy of Official Search in respect to Nzavi/Nziu/940 and Copy of Letter to Defendant’s Advocates dated the 23rd November, 2011.
Evidence of the Defendant
6.DW1 who represented the Defendant’s estate admitted that the deceased entered into a Sale Agreement with the Plaintiff but insists the same was not completed as it is the Plaintiff who frustrated it. DW1 contends that the mother entered into the said Sale Agreement when she was sick. Further, she avers that the Plaintiff only paid Kshs 517,000 as per her mother’s witness statement. It was her testimony that they never participated in the transaction despite the fact that they were adults and objected to the said sale. DW1 claimed the Plaintiff blocked the access road serving the village but the same was opened in 2014 by the County Commissioner. She admitted that since 2008 the Plaintiff had been in possession of the suit land and constructed thereon. DW1 reiterated that the Plaintiff is only entitled to a refund of Kshs 517,000 which her mother confirmed receipt of. Further, that the Plaintiff had not concluded the payment of the full purchase price. She produced the following documents as her exhibits: KNH Attendance Cards; KNH General Consultation Request Form; Case Summary from KNH and the map of the affected area.
Submissions
Plaintiff’s Submissions
7.The Plaintiff in her submissions contend that there was a valid contract, for sale of land parcel number Nzaui/Nzui/940, a subdivision of Nzaui/Nziu/920 between the Defendant and herself. She argued that the Defendant procured consent for subdivision from the Matiliku Land Control Board, pursuant to the Sale Agreement, but declined to obtain consent for transfer. She contends that the intention of the parties was clear and the court has powers to extent time to apply for consent of the Land Control Board. She explains that the Defendant though claiming she received less purchase price, did not provide evidence of bank accounts to demonstrate this averment. She refers to clause (4) of the Sale Agreement that confirmed the Sale was subject to the Law Society of Kenya Conditions of Sale (1988). Further, that the impugned Agreement did not contain a special clause stipulating that time was of essence, hence the Defendant cannot claim the completion date had lapsed. She challenges the fact that the Defendant purported to rescind the contract but continued to receive payment of purchase price. Further, that there was no ground for rescission of contract since she had performed her obligations as per the said contract. She further reiterates that she is the rightful owner of the suit land as the Defendant created a constructive trust in her favour. She insists the Defendant’s counterclaim cannot succeed. To support her arguments, she relied on Section 3(3) of the Law of Contract Act; Section 8(1) of the Land Control Act including the following decisions: Joseph Mathenge Kamutu v Joseph Wainaina Karanja & Another (2019) eKLR; Anne Murambi v John Munyao Nyamu & Another (2018) eKLR; Beatrice Muthio Nzioka v Charles Akelo Ongwen (2014) eKLR; Ann Mumbi Hinga v William Mwangi Gathuma & Another (2017) eKLR; Willy Kimutai Kitilit v Michael Kibet (2018) eKLR; Mamta Peeush Mahajan (Suing on behalf of the estate of Peeush Premlal Mahajan) v Yashwant Kumari Mahajan (sued personally and as executrix of the estate and beneficiary of the estate of the late Krishan Lal Mahajan) (2017) eKLR and Thomas Joseph Openda v Peter Martin Ahli (1983) KLR.
Defendant’s Submissions
8.The Defendant in her submissions contends that there was no valid contract for sale of all that property known as Nzaui/Nziu/940, a subdivision of Nzaui/Nziu/920, between the parties as the contents of the said Agreement cannot be amended by oral evidence. She insists the Agreement for sale was void as consent of the Land Control Board was not obtained. She argues that extension of time to secure a consent can be obtained from the High Court but the same is discretionary as the court has to be convinced there are valid reasons to do so. She reiterates that the Plaintiff breached the terms of the Sale Agreement as she blocked a public access road. Further, the Agreement is not enforceable as it was not stamped as required by Section 5 of the Stamp Duty Act. She reaffirms that she is the rightful owner of the suit land and the Plaintiff’s occupation is unlawful. Further, that the Plaintiff ought to have pleaded the issue of constructive trust in the Plaint and not raise it in submissions. She admits there are developments made on the suit land by the Plaintiff but argues that the Plaintiff did so, while fully aware that there was no consent of the Land Control Board. She avers that the Plaintiff’s suit cannot succeed but the Counter-claim is merited. To buttress her averments, she relied on the following decisions: David Sironga Ole Tukai v Francis Arap Muge & 2 Others (2014) eKLR; Kariuki v Kariuki (1982) eKLR; Fred C Fedha v E. Asava Majani (2010) eKLR; Elijah Shamalla Benjamin Momo v Gerry Chibeu (1988) eKLR; Rose Wakanyi Karanja & 3 Others v Geoffrey Chege Kirundi & Another (2016) eKLR; Concepta Nyaboke v Peter Muasya Wangaika & 2 Others (2019) eKLR; Joseph Boro Ngera v Wanjiru Kamau Kaime & Another (2010) eKLR; Julius Charito Kanyongo v Emmanuel M. Lousot (2018) eKLR; Willy Kimutai Kitilit v Michael Kibet (2018) eKLR; Glencore Grain Limited v TSS Grain Millers Ltd (2002) eKLR and Robert Mbui v Kennedy Mwanzia Musembi (2019) eKLR.
Analysis and Determination
9.Upon consideration of the Plaint, Defence including Counter-claim, testimonies of witnesses’ including exhibits and rivalling submissions, the following are the issues for determination:
- Whether an element of constructive trust was created in favour of the Plaintiff.
- Whether the Plaintiff is entitled to the Orders sought in the Plaint.
- Whether the Defendant is entitled to orders sought in the Counter-claim.
- Who should bear the costs of the suit.
10.I will deal with all these issues jointly but before I proceed to do so, I wish to highlight an excerpt from the Sale Agreement dated November 27, 2008 which forms the fulcrum of the dispute herein.
11.As to whether an element of constructive trust was created in favour of the Plaintiff. Both the Plaintiff and DW1 admit there was a Sale Agreement in respect to the Sale of eight (8) acres of land from a portion of Land Parcel No Nzaui/Nziu/920. Further, that the purchase price was Kshs 1,600,000. The Plaintiff claims despite paying most of the purchase price amounting to Kshs 1,441,000, the Defendant declined to transfer the suit land to her. The Defendant on the other hand insists that it is the Plaintiff who breached the Sale Agreement by failing to pay the full purchase price and blocking a public access road which DW1 admitted was opened by the District Commissioner in 2014. From the excerpt of the Sale Agreement which I have cited above, it is evident that the Defendant was paid Kshs 517,000 at the point of signing the said Sale Agreement. PW2 Dorothy Mwanzia Nganga who was the lawyer that drafted the impugned Sale Agreement, in her evidence confirmed that she gave the Defendant a Cheque of Kshs 100,000 from the Plaintiff. Further, at the point of reconciliation of payments made in 2010, the Defendant had received about Kshs 1,084,000. The Plaintiff further produced copies of several cheques she had written to the Defendant in respect to the purchase price for the eight (8) acres land. DW1 insisted that as per evidence of her mother, she had only received Kshs 517,000. However, from the evidence presented above, I note the Defendant actually continued to receive the purchase price from the Plaintiff, after executing the Sale Agreement. DW1 insisted that there was no consent to develop suit land but it emerged in evidence that it is the deceased who granted the Plaintiff access to the said land. Further, in her submissions, she avers that there is no valid contract of Sale for Nzaui/Nziu/920. However, from the evidence tendered in court including the consent for subdivision, it emerged that Nzaui/Nziu/920 was no longer in existence but the disputed portion was now Nzaui/Nziu/940. Further, as per Clause (G) on Special Conditions, the Vendor was to allow the Purchaser free access and use of the land which was done in 2008.
12.The Defendant has mainly dwelt on the issue of the absence of the consent for transfer from the Land Control Board and insists the Sale Agreement is void as the same was not procured within six months.
13.DW1 who was representing the Defendant’s estate insists the contract is rescinded and they are ready to refund the purchase price of Kshs 517,000 only.
14.On rescission of contract, in the case of Ann Mumbi Hinga v William Mwangi Gathuma & another [2017] eKLR the Learned Judge had this to say:
15.While in the case of Anne Murambi v John Munyao Nyamu & Another (2018) eKLR the Court stated that:-
16.Based on the evidence presented in Court, I find that it is the Defendant who indeed breached the contract and hence had no capacity to rescind it at the instance of the Plaintiff.
17.On the issue of procurement of the consent of the Land Control Board, from the excerpt above, it is actually the Vendor who was supposed to procure the Consent for Transfer from the Land Control Board and not the purchaser. It seems to me that the Defendant now seeks to shift the burden to her. Further, the payment of the balance of the purchase price was pegged on the Vendor obtaining the Consent to Transfer which she failed to do. I note the sale was further subject to the Law Society of Kenya Conditions of Sale Rules yet the Defendant did not adhere to condition set in Clause 4(7) of the said Rules which requires that a vendor who is ready and willing to complete the sale but is aggrieved by the purchaser’s default to complete the contract within the completion period is required to issue a twenty one days’ notice requiring the purchaser to complete the contract. This was not the position in this instance as it is actually the Vendor who delayed in completion of the contract. I note the Defendant insists the Sale Agreement was in respect to Nzaui/Nzui/920 but from the Mutation Form, Nzaui/Nzui/920 was subdivided by the deceased into Nzaui/Nzui/939 and Nzaui/Nzui/940 respectively, on January 20, 2009, which was soon after the Sale Agreement had been executed by both parties. Further, Plaintiff took possession of the land in 2008 and has been thereon despite the subdivision.
18.In the Court of Appeal decision of Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, it held that:-
19.Further in the case of Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR the Court of Appeal observed that:-
20.While in the case of William Kipsoi Sigei v Kipkoech Arusei & another [2019] eKLR, the Court of Appeal observed that:-
22.While in Section 38(2) (b) of the Land Act provides that:(2)Subsection (1) shall not apply to –a.a contract made in the course of a public action;b.the creation or operation of a resulting, implied or a constructive trust.”
23.Based on my analysis above while relying on the cited Court of Appeal decisions as well as the legal provisions I have quoted, I find that since the Defendant had received most of the purchase price as evident in the Cheques including acknowledgement of payment as well as reconciliations produced as exhibits; noting that the Plaintiff had paid more that she was expected to pay before receiving the consent to transfer; while it is the Defendant who showed the Plaintiff the portion of land to occupy, which she did from 2008 and developed it; I conclude that there was an element of part performance of the Sale Agreement. It is my considered view that since the year 2008 when the Plaintiff entered the suit land to date, an element of trust was created, which became an overriding interest over the said land. Insofar as the Plaintiff failed to obtain the necessary Consent to Transfer from the Land Control Board within the required period of six (6) months, to enable her acquire the title of the eight acres in her name; I find that the transaction is not void but enforceable by virtue of the doctrine of constructive trust and she is entitled to have the said eight (8) acres registered in her name.
24.As to whether the Plaintiff is entitled to the orders sought in the Plaint
25.The Plaintiff sought for various orders enumerated above. I note DW1 is the representative of the Defendant’s estate. On the issue of enlargement of time to procure consent of the Land Control Board to effect transfer of the suit land to the Plaintiff, the Defendant submitted that Section 8(1) of the Land Control Act provided that the High Court may, notwithstanding that the period of six months may have expired, extend the period to apply for consent of Land Control Board where it considers that there is sufficient reason so to do. It is trite that the ELC Court has equal status with the High Court and it follows that it has jurisdiction to extend time for seeking the said consent to transfer. In the case of Caroline Cherono Kirui v Liner Cherono Towett (2018) eKLR, Justice Ohungo while dealing with the issue of enlargement of time to apply for consent of the Land Control Board held as follows:
23.As observed earlier, the plaintiff has sought an order that time within which to apply for the consent of the Land Control Board by the parties herein be extended. As such, the process of seeking the consent as well as consideration of the application for consent is still underway. In the circumstances, I find and hold that the transaction between the plaintiff and the defendant as embodied in the sale agreement dated March 20, 2012, is not voided for want of consent of the land control board. This should be obvious since otherwise it would be pointless to give the court power to enlarge time notwithstanding that the period of six months may have expired.”
24.Since I have already held that an element of constructive trust had been created when the Plaintiff took possession of the suit land after paying most of the purchase price. From the Sale Agreement, the Plaintiff was incapacitated to apply for consent of the Land Control Board as this was the obligation of the Defendant who was the owner of the suit land which she already subdivided. In associating myself with the decision cited above, I find that this Court has the discretion to order for the enlargement of time to apply for consent of the Land Control Board and will proceed to do so.
25.The Plaintiff however never provided any evidence on damages she has suffered as a result of the breach of contract and will not award her the same.
26.On the question of costs, costs generally follow the event and since the Plaintiff is the inconvenienced party, I will award her the same.
27.As whether the Defendant is entitled to orders sought in the Counter-claim, I find that the Defendant did not have clean hands as she breached the terms of the Sale Agreement. In the circumstances, she is not entitled to the orders sought in the Counter-claim.
28.In the circumstances, I find that the Plaintiff has proved her case on a balance of probability and will proceed to enter Judgment in her favour and dismiss the Counter-claim. I will proceed to make the following final orders:a.The Defendant be and is hereby directed to specifically execute and transfer title number Nzaui/Nziu/940 measuring eight (8) acres to the Plaintiff within a period of fourteen (14) days from the date hereof, failure of which, the transfer be executed by the Deputy Registrar, Environment and Land Court Machakos.b.A declaration be and is hereby issued that the period of ninety (90) days contemplated under Clause D within which to effect the transfer has not expired.c.An order be and is hereby issued directing the parties or their legal representatives herein to appear before the relevant Land Control Board to seek for consent to transfer Title Number Nzaui/Nziu/940 in favour of the Plaintiff within 90 days from the date hereof, and the balance of the purchase price be paid upon delivery of the completion documents, including the consent of the Land Control Board as well as a signed Transfer in respect to the suit property.d.Costs of the suit is awarded to the Plaintiff.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 7TH DAY OF NOVEMBER, 2022CHRISTINE OCHIENGJUDGE