In our previous article, we discussed the importance of obtaining Land Control Board (LCB) consent in transactions involving agricultural land. See here /media/insights/land-control-boards-in-kenya
But a practical question often arises: what happens where a purchaser has paid the purchase price and taken possession, but LCB consent was never obtained?
The Court of Appeal recently considered this question in Agnes Ngeki Mutie v Jeremiah Kiily Maitha, Civil Appeal No. 66 of 2020 [2026] KECA 1540 (KLR), decided on 31 July 2026.
Brief Facts and Procedural History
The dispute arose from a 1991 sale agreement for agricultural land known as LR No. Kibauni/Malunda/190, at a purchase price of Kshs. 45,000. The purchaser paid the full purchase price and took possession. However, LCB consent was not obtained.
In 2003, the seller filed a suit before the Senior Principal Magistrate’s Court at Machakos, seeking nullification of the sale for want of LCB consent and a refund of the purchase price. The purchaser defended the claim and counterclaimed for specific performance and ownership based on adverse possession.
The purchaser died during the proceedings and was substituted by his widow, Agnes Ngeki Mutie.
The Magistrate’s Court dismissed the seller’s claim and ordered transfer of the property to the purchaser’s estate. On appeal, however, the Environment and Land Court (ELC) found that the land was agricultural and that the transaction was void under section 6 of the Land Control Act for want of LCB consent. The ELC also found that adverse possession had not been established and ordered a refund of the Kshs. 45,000 purchase price with interest.
The purchaser’s widow then brought a second appeal to the Court of Appeal.
Court of Appeal’s Finding
As a second appeal, the Court’s jurisdiction was confined to questions of law, rather than a general reconsideration of the facts.
The key question was whether, despite the absence of LCB consent, the purchaser had acquired a beneficial interest through constructive trust.
The Court noted that the purchaser had paid the purchase price and been placed in possession in 1991, while there was no evidence that the seller continued occupying the property after the sale.
Relying on Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri, George Chaguya Aliaza v Zephania Khisa Saul, Diasproperty Limited & 5 Others v Githae & 10 Others, and the Supreme Court’s decision in Shah & 7 Others v Mombasa Bricks & Tiles Limited & 5 Others [2023] KESC 106 (KLR), the Court held that a constructive trust had arisen.
The Court emphasised that registration did not prevent the registered proprietor from being subject to a trust. Having received the purchase price and put the purchaser in possession with the intention of transferring the property, the seller could not subsequently rely on his registration to defeat the purchaser’s beneficial interest.
Outcome
The Court of Appeal allowed the appeal and set aside the ELC decision. It ordered that the seller’s title be cancelled and a new title issued to the purchaser’s widow and awarded the appellant the costs of the appeal.
Practical Significance
The decision does not remove the statutory requirement for LCB consent under section 6 of the Land Control Act. Rather, it demonstrates that, in appropriate circumstances, the court may recognise a constructive trust where the purchaser has paid the purchase price and been placed in possession.
For conveyancing practice, Mutie v Maitha is a reminder that where an old agricultural land transaction is disputed, it is important to examine not only whether LCB consent was obtained, but also the parties’ conduct, payment, possession and subsequent dealings with the property.
At MMS Advocates, this decision is particularly relevant when advising on historical land transactions and disputes involving uncompleted transfers, LCB consent and competing claims to beneficial ownership.
