[2018] KEELC 3585 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 107 OF 2013

BARTHOLOMEW W.K. WANYAMA...................................PLAINTIFF

VERSUS

JOHN BARASA WALEKHWA.....................................1ST DEFENDANT

LONGIROKWANG NAKORITANG..........................2ND DEFENDANT

JUDGMENT

1. The original plaint in this matter which was filed on 5/8/2013 was subsequently amended. On 25/2/2016, the plaintiff filed an amended plaint. In the amended plaint he enjoined the second defendant and claimed against him.

2. The 1st defendant and the 2nd defendant filed their amended defence and defence respectively on 19th April, 2016 and 10th May, 2016 respectively. The hearing of this suit took place on 17/10/2017. The plaintiff gave evidence in support of his case alone while the defendant testified and called one witness. Only the 2nd defendant filed his submissions in the matter on 24/11/2017.

The Plaintiff’s Case

3. In the amended plaint, the plaintiff avers that he entered into a written agreement with the 1st defendant for sale to him of all that land parcel known as Kwanza/Kwanza Block 3/Luhya/164 measuring 5 acres at the price of Kshs.750,000/=. Kshs.500,000/= was paid on or before the signing of the agreement. The balance was to be paid upon a consent to transfer being obtained in the plaintiff’s favour and upon a registrable transfer being executed by the 1st defendant.

4. The plaintiff took possession of the land immediately after execution of the agreement and invested heavily in the land. It was the duty of the 1st defendant obtain the consent and the payment was made on this understanding. “However the 1st defendant despite requests by the plaintiff breached the agreement by failing to obtain the consent and failing to transfer the suit land to the plaintiff.

5. Among the amendments is the detail that despite the subsistence of the suit and in disobedience of a consent order recorded in the suit on 25/3/2015, the 1st defendant now has made arrangements to sell the suit land to the 2nd defendant and has transferred it in order to redeem a loan advanced to the 1st defendant by the Agricultural Finance Corporation. It is the plaintiff’s case that he had proposed to clear this loan but the 1st defendant refused to such payments. The plaintiff’s case is that the 1st defendant did not have good title that he could pass on to the 2nd defendant and that the registration of the suit land in the latter’s name is unlawful. He pleads fraud against the 1st defendant, and prays for specific performance of the agreement, a declaration that the sale agreement between the 1st and 2nd defendant is null and void, that the title to the 2nd defendant be cancelled and general damages for breach of the agreement. He also seeks costs of the suit.

The Defendant’s Case

6. The 1st defendant denied the agreement alleged by the plaintiff. He avers that he does not own the suit land; that since no agreement was ever executed between him and the plaintiff, the issue of consent of Land Board does not arise; that in the alternative, the Land Control Board Consent for the agreement was obtained; that the 1st defendant only leased the land to the plaintiff for the planting of trees; that no orders prohibit him from dealing with the land; that the transaction between the two defendants is valid and that the suit ought to be dismissed.

The 2nd Defendant’s Defence

7. The 2nd defendant avers that he is the lawful owner of the suit land, and that the agreement between the plaintiff and the 1st defendant is null and void for want of consent of the Land Control Board. Determination

The Issues Arising

8. The issues arising in this suit are as follows:

(1)Was the agreement between the plaintiff and the 1st defendant made in 2008 for the lease or sale of the 1st defendant’s land?

(2) Was the agreement null and void for want of the Land Control Board’s Consent?

(3) Should the title to the 2nd defendant be cancelled?

(4) What orders should issue?

(1) Was the agreement between the plaintiff and 1st defendant for lease or sale?

9. The plaintiff testified on 17/10/2017 in this matter and called no witness. According to him, it was the 1st defendant who approached him and proposed the sale to him of the suit land for Kshs.750,000/=, whereupon he paid Kshs.500,000/=. According to the plaintiff the agreement was written down, and it got lost in mysterious circumstances while stored in his car which was under the custody of the 1st defendant who was his driver at the time of that disappearance. When the plaintiff asked him where it was, the 1st defendant denied knowledge of its whereabouts. However the plaintiff took possession of the land in the year 2009 and planted trees on the entire 5 acres.

10. The plaintiff produced no documentary evidence of the agreement for reason of loss of the original agreement as described about. However it is not disputed that he has been in continuous possession since 2009. He also produced no evidence of payment for the land. He did not have any withdrawal slip in respect of the moneys that he paid. He never reported the loss of the agreement to the police. He testified that he paid the Kshs.500,000/= in cash at the farm. He never placed any caveat on the land title. There is evidence of sale of land before me and I have to go by the concession made by the 1st defendant that the agreement between him and the plaintiff was for lease of the land to the plaintiff.

11. The 1st defendant’s evidence is that out of the friendship between the two, grew love and trust which made him release the suit land to the plaintiff for the purpose of planting trees. However the 1st defendant also does not have any documentary evidence of the lease agreement. However, in a curious turn of event, the 1st defendant acknowledged under cross-examination that he had introduced the plaintiff to the Manager of A.F.C. in connection with the loan from A.F.C.

12. The evidence of the 2nd defendant was also that the purchase price for the land was paid on the farm in cash to the 1st defendant, just like in the plaintiff’s case. There was a confession on the part of the 1st defendant that there was a familiar relationship between the plaintiff and the 1st defendant and that the plaintiff got the 1st defendant employed into the project he was working in. What however strikes me most is the secretiveness with which the 1st defendant moved to sell the suit land to the 2nd defendant. In my view, the oral evidence of the plaintiff must be weighed against the oral evidence of the 1st defendant for none of them produced either the alleged sale agreement or the alleged lease agreement. Leaseholds over land for growing of trees would have to be for long periods as contrasted to leaseholds for the growing of annual or biennial crops. Leaseholds for the growing of trees would, in my view not be popular with land owners who would not predict when they may next need the land for their own purposes. I therefore find it strange that the 1st defendant would agree to such a leasehold, arrangement without any written and or registered lease to secure his interest and to provide for a definite term or events such as the number of harvests the plaintiff was entitled to.

13. Therefore the secretiveness with which the 1st defendant sold the land to the 2nd defendant renders him suspect, and contributes to this court’s conclusion that he is concealing something. All this should be viewed against the claim of loss of the original agreement while it was in the plaintiff’s vehicle, of which the 1st defendant was a chauffeur.

14. The further conduct of the 1st defendant, in denying that the plaintiff has possession of the land as at date, was curious. It appears that the defendant was not for some reason able to access the land out of knowledge that some interest thereof had been bought by the plaintiff otherwise he would have confidently commenced on the process of termination of the plaintiff’s lease, if any in order to secure the land from the plaintiff’s possession and sell it.

15. Further, the 1st defendant concealed the true status of the land and relations between him and the 2nd defendant who gave evidence as follows under cross-examination:-

“I bought the shamba from Barasa. He told me the trees are his and he would cut them. He never cut the trees. He said he is far away in Kakamega and so on. If he said the trees are not his, I would not have bought the land. It is possible I was not told the truth. He never told me there is a court case. I would not have bought if he had told me. I would try enter but I would be prevented. I have never used the land”.

16. From the evidence of the three parties and the conduct of the 1st defendant, I am convinced that the agreement between the plaintiff and the defendant, though not produced in court, was more than a lease agreement. It was a sale agreement. Otherwise the 1st defendant would not have pleaded an alternative defence of lack of consent.

(2) Was the agreement null for want of a Land Control Board Consent?

17. No consent of the Land Control Board was produced by any party in respect of the agreement between the plaintiff and the 1st defendant. The provisions of Section …………….of the Land Control act states as follows:-

“S. 6…….

18. That Section states that a transaction such as a sale of land is void unless the Land Control Board of that area where the land is situated has granted its consent thereto. Section 8 of the Act provides that the application for such consent shall be made within 6 months of the making of the agreement. No application was produced before this court by the plaintiff. I therefore find that the agreement is null and void for want of consent of the Land Control Board.

(3) Should the title in the 2nd defendant’s name be cancelled and the land registered in the plaintiff’s name?

19. The plaintiff’s claim against the 2nd defendant is for fraud. Unfortunately the 2nd defendant, according to the evidence in this suit, had no knowledge of the plaintiff’s interests in the land as, first the plaintiff was not registered as proprietor and, secondly he never lodged any caution against the suit property. Besides, the 2nd defendant purely relied on the representations of the 1st defendant whom he had established to be the registered owner of the land. If any claim for fraud could lie in favour of the plaintiff, it would be against the 1st defendant only as the latter knew all the terms of his engagement with the plaintiff but proceeded to accept money and to transfer the land to the 2nd defendant.

20. However through lack of careful pleading that aspect of the case as against the 1st defendant is lost. I find that the 2nd defendant was a bona fide purchaser for value without notice and that his interests in the land should not be adversely affected. The claim for cancellation of his title should be denied.

Conclusion

(4) What Orders should issue

21. I have found that there was an agreement between the 1st defendant and the plaintiff for the sale of land. I have also found that the sale to the 2nd defendant was effected without the 2nd defendant being notified of the circumstances that surrounded the suit land, that is, the plaintiff’s occupation and the existence of this suit. Besides, I have found that the agreement for sale between the plaintiff and the 1st defendant was void for want of consent of the Land Control Board. Section 7of theLand Control Board Act states as follows:-

S. 7……Section 7 refers to Section 22 of the Act which forbids acts in furtherance of a void transaction.

22. The plaintiff has however prayed for an alternative prayer of refund of Kshs.500,000/= being the amount paid to the 1st defendant, under the said agreement, plus interest thereon from March 208 till payment in full. I find that in the circumstances of this case, this is the only proper remedy available to grant to the plaintiff. Consequently I grant judgment in favour of the plaintiff against the 1st defendant for refund of Kshs.500,000/= therefor plus interest at court rates from March, 2008 till payment in full. The costs of the plaintiff and of the 2nd defendant in this suit together with interest thereon at court rates shall be borne by the 1st defendant.

It is so ordered

Dated, signed and delivered at Kitale on this 21st day of March, 2018.

MWANGI NJOROGE

JUDGE

21/3/2018

Coram:

Before - Mwangi Njoroge - Judge

Court Assistant - Picoty

Mr. Bungei holding brief for Tigogo for 2nd defendant

Mr. Ingosi for the plaintiff

Mr. Wafula for 2nd defendant - absent

COURT

Judgment read in open court.

MWANGI NJOROGE

JUDGE

21/3/2018