AGNES NGEKI MUTIE V JEREMIAH KIILY MAITHA

CIVIL APPEAL 66 OF 2020 [2026] KECA 1540 (KLR)

BEFORE: L. KIMARU, L. NJUGUNA & DR. J. OKELLO, JJA
DELIVERED on 31ST JULY 2026
COURT OF APPEAL AT NAIROBI

BACKGROUND

In August 1991, Jeremiah Kiilu Maitha, the respondent herein sold a piece of land in Machakos to Ngeki Mutie for Kshs 45,000. The buyer took possession the same year and, together with his family, went on to develop the property.

12 years later, in 2003, the seller filed a suit asking the court to cancel the sale on the basis that they had never received the Land Control Board (LCB) consent, a legal requirement for transactions involving agricultural land. The buyer passed away shortly after the case was filed, and his widow stepped in as his substitute.

The case then took a winding path through the courts. The Magistrate’s Court initially sided with the buyer’s family, finding that the seller had not proved the consent requirement and ordered the land transferred to them.

On appeal, the Environment and Land Court reversed this decision, ruling that the land was indeed agricultural and that the sale was void for lack of consent and that the family was only entitled to a refund of the original purchase price plus interest upon when the widow then took the matter to the Court of Appeal.

ISSUES

The dispute raised a central question that has come up repeatedly in Kenyan land law: where a sale of agricultural land goes ahead without the required Land Control Board consent, but the buyer has paid the full price and taken possession, can the seller later use that missing consent to reclaim the land; or does the law step in to protect the buyer through the doctrine of constructive trust, even though the sale itself was technically void?

ANALYSIS

The Court of Appeal accepted that the land was agricultural and that the sale was indeed void for want of consent under the Land Control Act. However, it held that this was not the end of the matter.

The court held that registering land in one’s name does not free a person from obligations they may hold as a trustee over that land. The real question, the Court said, was whether the seller held the land in trust for the buyer despite the missing consent.

Drawing on a well established line of Kenyan cases, including the Supreme Court’s own decision in Shah v Mombasa Bricks & Tiles Limited, the Court held that once a buyer pays the full purchase price and takes possession of land, a constructive trust arises in their favour. This trust becomes an interest in the land that a missing consent, on its own, cannot defeat.

On the facts, the buyer’s family had taken possession in 1991 and there was no evidence the seller ever tried to reclaim or reoccupy the land in the years that followed.

Guided by the Constitution’s call for substantive rather than purely technical justice, the Court found that the seller could not, decades later, use a paperwork defect to undo what had already been done.

CONCLUSION

The Court of Appeal allowed the widow’s appeal, cancelled the title that had remained in the seller’s name, and ordered that a fresh title be issued to her, with costs awarded in her favour.

This decision reinforces a clear message for anyone dealing in land in Kenya. For buyers who have paid in full and taken possession of land, even where the formalities were never completed, the law offers real protection through the doctrine of constructive trust. For sellers, accepting payment and handing over possession; it is difficult to reverse the process no matter how much time has passed or how incomplete the paperwork was at the time.

More broadly, the case is a timely reminder for anyone involved in land transactions to secure the Land Control Board consent promptly where it is required, and to address any gaps early, since disputes over old and unconsented sales can take decades to resolve and, as this case shows, can outlive the very people who signed the original agreement.

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Agnes Ngeki Mutie v Jeremiah Kiily Maitha – Constructive Trust & Land Control Board Consent in Kenya