[2012] KEHC 1914 (KLR)
The court found that the sale agreement between the Plaintiff and Defendant was subject to the consent of the Land Control Board, which was not obtained. Under Section 6 of the Land Control Act, the transaction was rendered null and void for all purposes. The Defendant, having taken possession of the land under a...
Source-derived case information.
- Citation
- [2012] KEHC 1914 (KLR)
- Parties
- Plaintiff: Daniel Lusamamba Khaemba; Defendant: Geoffrey Mulunda Musamali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 114 of 2011
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the Plaintiff as prayed.
- Judges
- AO Muchelule
- Legal Topics
- Land Sale Agreements, Land Control Board Consent, Eviction, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Lusamamba Khaemba
Plaintiff
Geoffrey Mulunda Musamali
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the sale agreement between the Plaintiff and Defendant was valid in the absence of Land Control Board consent.
- 2 Whether the Defendant is entitled to remain in possession of the one acre of land.
- 3 Whether the Plaintiff is entitled to an order of eviction and permanent injunction against the Defendant.
Ratio Decidendi
The court found that the sale agreement between the Plaintiff and Defendant was subject to the consent of the Land Control Board, which was not obtained. Under Section 6 of the Land Control Act, the transaction was rendered null and void for all purposes. The Defendant, having taken possession of the land under a void agreement and not having paid the full purchase price, had no legal right to remain on the land. The Plaintiff was therefore entitled to an order of eviction and a permanent injunction restraining the Defendant from trespassing on the land. The court also noted that there was no defence or counterclaim filed by the Defendant, nor was there a prayer for refund of any money...
Court Disposition
Judgment for the Plaintiff as prayed.
Orders
- The Defendant shall be evicted from the one acre of land.
- A permanent injunction is issued restraining the Defendant from trespassing on the Plaintiff's land.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 114 of 2011
DANIEL LUSAMAMBA KHAEMBA.......................................................PLAINTIFF
~VERSUS~
GEOFFREY MULUNDA MUSAMALI..................................................DEFENDANT
JUDGMENT
The Plaintiff is the registered proprietor of land parcel no. Bungoma/Tongaren/109 measuring 6. 6. Hectares. In June/July 2009 he agreed to sell to the Defendant one acre of the parcel for Ksh.320,000/=. It was agreed that the Defendant buys electrical materials and installs power for the Plaintiff and that the cost of these would be applied as part of the purchase price. The cost was Ksh.174,878/=. The sale agreement was subject to the consent of the Land Control Board which was not obtained. The transaction became null and void for all purposes. The Defendant had taken possession of the one acre. The suit was brought for his eviction and for permanent injunction to restrain him from trespassing on the land. With the failed agreement, and in any case the full purchase price was not paid, the orders shall issue as prayed.
The Plaintiff testified that he later found out that the actual cost of supplying electricity was Ksh.44,600/= and not Ksh.174,878/=. That is neither here not there as there was no defence or counterclaim, and neither did the prayers seek that the money paid be refunded.
Costs of the suit shall be paid by the Defendant.
Dated, signed and delivered at Bungoma 10th day of October, 2012.
A.O. MUCHELULE
JUDGE