[2012] KEHC 1331 (KLR)
The court found that the sale agreement between the plaintiff and defendant was void under Section 6(1)(c) of the Land Control Act because no consent from the Land Control Board was obtained within six months of the agreement. The plaintiff had paid the full purchase price and taken possession, but the law is...
Source-derived case information.
- Citation
- [2012] KEHC 1331 (KLR)
- Parties
- Plaintiff: Dishon Muchene Mwangi; Defendant: Hafuswa Bakari
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 28 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit dismissed with costs; plaintiff entitled only to refund of purchase price
- Judges
- CW Meoli
- Legal Topics
- Land Sale Agreements, Land Control Board Consent, Void Transactions, Specific Performance, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Muchene Mwangi
Plaintiff
Hafuswa Bakari
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the sale agreement for land parcel LR LAMU/LAKE KENYATTA/11/192 is enforceable in the absence of Land Control Board consent.
- 2 Whether the plaintiff is entitled to specific performance or only a refund of the purchase price.
Ratio Decidendi
The court found that the sale agreement between the plaintiff and defendant was void under Section 6(1)(c) of the Land Control Act because no consent from the Land Control Board was obtained within six months of the agreement. The plaintiff had paid the full purchase price and taken possession, but the law is explicit that such transactions are void without the requisite consent. The court emphasized that it cannot enforce a void agreement or grant specific performance in such circumstances. The only remedy available to the plaintiff is a refund of the purchase price paid. The suit was therefore dismissed with costs to the defendant.
Court Disposition
suit dismissed with costs; plaintiff entitled only to refund of purchase price
Orders
- The plaintiff's suit is dismissed with costs to the defendant.
- The plaintiff is entitled to a refund of the purchase price paid.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
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DISHON MUCHENE MWANGI...........................................................................PLAINTIFF
VERSUS
HAFUSWA BAKARI.........................................................................................DEFENDANT
J U D G M E N T
1. This suit was brought by the Plaintiff to enforce an agreement for the sale of land parcel No. LR LAMU/LAKE KENYATTA/11/192 which was entered into between the plaintiff and the defendant on 22nd June, 2001 and 28th October, 2003. The plaintiff was the purchaser, the defendant the vendor.
The key averment in the Defence statement is that the transaction is void by virtue of the provisions of Section 6 of the Land Control Act.
2. The parties adduced evidence at the trial. I have looked at the evidence and respective submissions. This case in my view turns on the sole question whether the sale agreement (s) are capable of enforcement as prayed in the plaint.
3. Admittedly, the earliest agreement duly signed by both parties is the one dated 28th October, 2003 (P.Exh. 1b) as there is an admission by the plaintiff that the defendant never signed the agreement dated 22nd June, 2001 (P.Exh.1a)
4. Additionally, it was not until 25th April, 2006 that the final installment of the purchase price was paid. A few months later a title deed issued in the defendant's name (E.Exh.2). Meanwhile, the plaintiff had moved into the property. But the defendant became unwilling to proceed with the transfer. Hence no consent has been obtained from the Land Control Board todate even through it appears the entire purchase price has been paid.
5. The position of the law is very clear. Any transaction for the sale or transfer of land which does not receive the consent of the appropriate land control board within a period of six months is “void for all purposes” (Section 6(1)c) of the Land Control Act.
6. In this case, the plaintiff waited ten years to come to court. It is too late. The court cannot order the performance of a void agreement (see Karuri v Gituru [1981] KLR 247: Wamukota vs Donati [1987]KLR 280, Elly Odhiambo Onyuka vs Ayub Odhiambo Migwalla Civil Appeal No. 81 of 2002 (U.R). The plaintiff's case therefore cannot succeed. All that he is entitled to is a refund of the purchase price. His suit is dismissed with costs.
Delivered and signed this25th day of October, 2012 in the absence of parties.
Court clerks – Leah and Evans.
C. W. Meoli
JUDGE