[2011] KEHC 2880 (KLR)
The court held that the Land Disputes Tribunals did not have jurisdiction to order the transfer of registered land, as such jurisdiction is excluded by Section 159 of the Registered Land Act and established case law. However, the appellant, having received the full purchase price and failed to obtain the necessary...
Source-derived case information.
- Citation
- [2011] KEHC 2880 (KLR)
- Parties
- Appellant: Aggrey George Namenge; Respondent: Claire Makokha
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2009
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Each party to bear own costs here and below.
- Legal Topics
- Land Control Board Consent, Specific Performance, Jurisdiction of Land Disputes Tribunal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey George Namenge
Appellant
Claire Makokha
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunals had jurisdiction to order transfer of registered land under Section 159 of the Registered Land Act.
- 2 Whether the appellant was entitled to retain the purchase price after failing to obtain Land Control Board consent.
- 3 How costs should be apportioned given the circumstances of the case.
Ratio Decidendi
The court held that the Land Disputes Tribunals did not have jurisdiction to order the transfer of registered land, as such jurisdiction is excluded by Section 159 of the Registered Land Act and established case law. However, the appellant, having received the full purchase price and failed to obtain the necessary Land Control Board consent, acted dishonestly and could not retain the respondent's money without consideration. The respondent's ignorance of the law was acknowledged, but the appellant's conduct was found to be more blameworthy. Exercising its discretion on costs, the court determined that each party should bear their own costs, both in the lower tribunals and on appeal.
Court Disposition
Appeal allowed. Each party to bear own costs here and below.
Orders
- The appeal is allowed.
- Each party shall bear their own costs in this court and in the lower tribunals.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO.16 OF 2009
AGGREY GEORGE NAMENGE..............................................................................APPELLANT
=VERSUS=
CLAIRE MAKOKHA..............................................................................................RESPONDENT
[From the Judgement and decree of Western Provincial Land Disputes Appeals Tribunal in
Appeal Case No.9 of 2008 as adopted by BusiaPrincipal Magistrate’s Court Land Case No. 81 of 2009]
J U D G E M E N T
The facts of this suit indicate that the Appellant bought two acres of L.R. No. Bukhayo/Buyofu/51 at a purchase price of kssh70,000/= which was promptly paid. The Respondent failed to secure the Land Control Board consent as required within the period prescribed or at all.
The Appellant as a result filed a claim before the Nambale Land Disputes Tribunal for specific performance. She obtained an order of specific performance and on appeal the award was confirmed by the Provincial Land Disputes Tribunal. Then the Respondent/Seller appealed to this court challenging the jurisdiction of the two Tribunals to make a transfer of a substantive beneficial interest in registered land in the face of Section 159 of the Registered Land Act, Cap 300 of the Laws of Kenya and of many decisions of this and other courts in respect of lack of jurisdiction to make such order by the Land Dispute Tribunals.
As the record shows, the Respondent, the purchaser conceded that the Land Disputes Tribunals have no such jurisdiction as stated above. She then appealed to this court not to penalize her in costs considering the peculiar circumstances of this case. The Appellant on the other hand saw no peculiar circumstances in the case except ignorance of the law, and sought full costs.
I have considered the issue of where costs should lie. There is no doubt that the Appellant sold his land to the Respondent and received full payment of kshs70,000/= for two acres. He failed to apply for consent of the local Land Control Board to enable a transfer to be effected. Later he apparently reneged. He has never given good reasons for reneging, particularly after making use of the Respondent’s money of kshs70,000/=. He has not on record offered to refund the purchase money, thus trying, in addition, to retain the funds unduly and without consideration, adding salt to the injury. He must have used the funds to create other greater wealth or earn interest on it if he put it in the bank.
This court is aware that indeed the Respondent always, to date, suffered from ignorance of the law. However, the appellant had no legal basis to keep the Respondent’s money because he made it impossible for the Respondent to obtain the necessary consent which would strengthen the purchase. He clearly acted dishonestly from the beginning, took advantage of the Respondent’s lack of education and ignorance of the law. He cannot now be seen to sneer at the poor Respondent.
In the above circumstances and carefully considering this court’s discretion to grant costs, which of course should be exercised judicially, I would consider it proper to give an order which imposes some burden of the costs on the Appellant/Vendor to some extent. I allow the appeal. Each party shall bear own costs here and below. Orders accordingly.
Dated and delivered at Busia this 11th day of May 2011
D.A. ONYANCHA
JUDGE.