[2009] KEHC 779 (KLR)
The court found that the sale agreement between the respondent and the applicant's father was a controlled transaction subject to Land Control Board consent, as expressly stated in the agreement. There was no evidence that such consent was ever sought or obtained. Under section 6 of the Land Control Act, the...
Source-derived case information.
- Citation
- [2009] KEHC 779 (KLR)
- Parties
- Applicant: Bosire Julius Otwori; Respondent: George Alfanus Onyare
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 151 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Temporary Injunction
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Land Control Board Consent, Sale of Land, Injunctive Relief, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bosire Julius Otwori
Applicant
George Alfanus Onyare
Respondent
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the respondent acquired any legal interest in the suit land in the absence of Land Control Board consent.
- 2 Whether the applicant is entitled to a temporary injunction restraining the respondent from interfering with the suit land pending determination of the suit.
Ratio Decidendi
The court found that the sale agreement between the respondent and the applicant's father was a controlled transaction subject to Land Control Board consent, as expressly stated in the agreement. There was no evidence that such consent was ever sought or obtained. Under section 6 of the Land Control Act, the transaction was therefore void for all purposes, and the respondent could not claim any legal interest in the land based on it. The applicant, as the registered owner, established a prima facie case for injunctive relief. The balance of convenience favoured the applicant, and the court granted the temporary injunction sought.
Court Disposition
application allowed
Orders
- A temporary injunction is granted restraining the respondent, his agents and/or servants from interfering in any manner with the suit land pending the hearing and determination of the suit.
- The applicant is awarded costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 151 of 2009
BOSIRE JULIUS OTWORI……………PLAINTIFF/APPLICANT
-VERSUS-
GEORGE ALFANUS ONYARE…DEFENDANT/RESPONDENT
RULING
Title deeds “BJO “and “BJO2” show the applicant has been the registered owner of parcel of land no. Nyaribari Chache/Keumbu/1301 measuring 1. 2 acresandNyaribari Chache/Keumbu/1264measuring 1. 2 Hectares since 7/11/2008. He stated that the two parcels are adjacent to each other and share a common boundary. He came to court complaining that on 27/7/2009 the respondent without any reason or cause entered the parcels, removed the boundary and put up a barbed fence around them. He also begun to dig in the said parcels and was preparing ground for temporary structures. The suit was filed seeking permanent injunction, and with it was filed application under Order 39 rules 1,2 and 3 of the Civil Procedurerules andsections 3,3A and 63(e) of the Civil Procedure Act for temporary injunction restraining the respondent, his agents and or servants from interfering in any manner with the suit land pending the hearing and determination of the suit.
The respondent filed a Defence and swore a Replying Affidavit. His case was that on 30/4/2004 he bought the two parcels of land from Alfred Otwori, the father of the applicant, for kshs. 1. 4 million. He paid kshs. 300,000/= on the date and entered into occupation. He was since paid Kshs. 1. 3 million towards the purchase price. The agreements are “GAO-01 and 02(a) to (f)”. The seller wanted the money to pay for the applicant’s university education at Kenyatta University. Otwori was then the registered owner of the parcels. The respondent has structures on the lands and is cultivating the same. He has also fenced the lands with posts and barbed wire.
When the application came for hearing Mr. Okenye for the applicant was present. Mr. Nyariki for the respondent was absent. I heard Mr. Okenye.
In the Supplementary Affidavit, the applicant admits he was not the original owner. The owner was his father at the time of agreement. This agrees with the respondent that the applicant became the registered owner subsequent to the sale agreement above. The respondent had claimed that the transfer was fraudulently done to defeat this interest. This was denied by the applicant.
Mr. Okenye raised the issue that the purported purchase by the respondent did not receive he blessings of the Land Control Board and was therefore null and void and no interest could issue to the respondent on account of such transaction. In the special conditions in “GAO-01” (Sale Agreement) the transaction was subject to the consent of the Land Control Board. This is the respondents’ document. There is no indication that such consent was sought or obtained.
The parties had entered into controlled transaction and since no consent had been obtained, the agreement was void for all purposes under section 6 of the Land Control Act [Cap 302] (See Shamalla –V- Chibey [1988] KLR 251]. It follows that the respondent cannot base his claim to the land on the transaction. I must find, therefore, that the applicant has demonstrated a primafaciecase (SeeGiella –V- CassmanBrown and CompanyLTD [1973] EA358).
The balance of convenience must tilt in favour of the registered owner of land.
I allow the application with costs
Dated, signed and delivered this 23rd day of October, 2009
A.O. MUCHELULE
JUDGE
23/10/2009
23/10/2009
Before A.O. Muchelule-J
Court clerk-Mongare
Mr. Nyariki for the respondent
COURT: Ruling in open court
A.O.MUCHELULE
JUDGE
23/10/2009