[2006] KEHC 2682 (KLR)
The court held that the appellant's admitted failure to pay the full purchase price constituted a breach of contract, entitling the respondent to repudiate the agreement and seek a refund. Additionally, the court found that the sale agreement was null and void for want of Land Control Board consent as mandated by...
Source-derived case information.
- Citation
- [2006] KEHC 2682 (KLR)
- Parties
- Appellant: Harrison Kiio Kalandi; Respondent: Nthitu Munuve
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Land Sale Agreements, Breach of Contract, Land Control Board Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harrison Kiio Kalandi
Appellant
Nthitu Munuve
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant's failure to pay the full purchase price constituted a breach justifying contract repudiation.
- 2 Whether the sale agreement was null and void for lack of Land Control Board consent under Section 6(1) of the Land Control Act.
- 3 Whether the trial magistrate had jurisdiction to determine the matter given the value of the land.
Ratio Decidendi
The court held that the appellant's admitted failure to pay the full purchase price constituted a breach of contract, entitling the respondent to repudiate the agreement and seek a refund. Additionally, the court found that the sale agreement was null and void for want of Land Control Board consent as mandated by Section 6(1) of the Land Control Act. The appellant's argument regarding the trial magistrate's jurisdiction was dismissed as it was not raised in the lower court and, in any event, could not cure the lack of statutory consent. Consequently, the appeal was dismissed and the orders of the lower court upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The sale contract is nullified.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Appeal 32 of 1996
HARRISON KIIO KALANDI……………………...……………..APPLELLANT
VERSUS
NTHITU MUNUVE…………………………………… ………...RESPONDENT
( From the judgment and Decree of G.J.K. Kiia, DMI in Makueni District
Magistrate’s Court Civil Case no. 5 of 1991)
JUDGEMENT
The appellant/defendant bought a piece of land from the Respondent/Plaintiff at a price of Kshs. 22,000/= on 14. 11. 1997. The appellant paid to the Respondent a total of KSHS. 16,900/= and remained with a balance of Kshs. 5,100/= to complete. The sale was reduced into a written agreement. In 1987 the respondent repudiated the agreement and sought to refund the purchase price. The appellant who had taken up possession, refused to take back his money. The Respondent then filed this suit at the lower court, seeking orders to refund the purchase price and keeping his land. He claimed that he had repudiated the contract because the appellant had breached the contract by failing to clear the purchase price.
The lower court found in favour of the Respondent’s. The court nullified the contract, ordered a refund of the sum of Kshs. 16,900/= from the respondent, ordered the appellant to accept back his money. He also ordered the appellant to immediately vacate the land. The appellant appealed, and the appeal has been pending since 1996.
I have considered the facts on record and the arguments raised by counsel representing either party. It was admitted by the appellant that he had failed to clear the balance of Kshs. 5,100/= being part of the purchase price. The trial Magistrate confirmed that fact and ruled that the conduct was a breach of the sale contract which entitled the Respondent to walk out of the contract. Since the appellant did not dispute the breach, the trial Magistrate, in my view, was entitled to reach the conclusion he did and to nullify the sale contract. On that ground alone, this appeal has no merit.
However, had the trial Magistrate found that the contract might need not be nullified, this court would still have nullified the sale contract on the ground that the contract was null and void. This is so because there is no evidence brought forward by the appellant to the effect that the written sale contract of the land in dispute, was granted the consent of the Land Control Board as required by Section 6(1) of the Land Control Act. Although this issue was raised by Mr. Mulwa, for the Respondent, Mr. Kisongoa avoided to respond to it. He tarried on the issue that the trial Magistrate had no jurisdiction to entertain the claim upon the ground that the value of the land was more than the trial Magistrate could handle.
In my view even if there could be a point in his argument and I do not say so, the same was not raised in the lower court. Nor could it be of help to the appellant who to date lacks the mandatory consent of the Land Control Board.
For the above reasons, this appeal must fail. It is dismissed with costs to the Respondent.
Orders accordingly.
Dated and delivered at Machakos this 17th day of March, 2006.
D.A. Onyancha
JUDGE