[2010] KEHC 1271 (KLR)
The court held that the alleged agreement for the sale of land was unenforceable because it was not reduced into writing as mandated by Section 3(3) of the Law of Contract Act. Furthermore, the subject matter being agricultural land required consent from the Land Control Board, which was neither sought nor obtained....
Source-derived case information.
- Citation
- [2010] KEHC 1271 (KLR)
- Parties
- Appellant: Isaac Ng'ang'a; Respondent: Stephen Wahome; Respondent: David Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 542 of 2007
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Land Sale Agreements, Enforceability of Contracts, Requirement of Writing, Consent Under Land Control Act
- 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
Isaac Ng'ang'a
Appellant
Stephen Wahome
Respondent
David Njoroge
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether an oral agreement for the sale of land is enforceable under Kenyan law.
- 2 Whether the absence of Land Control Board consent renders the transaction void.
- 3 Whether the appellant is entitled to a transfer of land or refund of the purchase price.
Ratio Decidendi
The court held that the alleged agreement for the sale of land was unenforceable because it was not reduced into writing as mandated by Section 3(3) of the Law of Contract Act. Furthermore, the subject matter being agricultural land required consent from the Land Control Board, which was neither sought nor obtained. The absence of both a written contract and the requisite consent meant the transaction had no legal foundation. Consequently, the trial magistrate was correct in dismissing the suit, and the appeal was dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 542 of 2007
ISAAC NG’ANG’A ………………………………..………………APPELLANT
VERSUS
STEPHEN WAHOME……………………………………1ST RESPONDENT
DAVID NJOROGE……………………………………..2ND RESPONDENT
(Being an appeal against the judgment and orders of A.O. Aminga
Resident Magistrate delivered on 21st May, 2007 in the Limuru SRMCC.421 OF 2006)
ISAAC NGANGA WAMUI…………………………………………PLAINTIFF
VERSUS
STEPHEN WAHOME ……………………………………1ST RESPONDENT
DAVID NJOROGE …………………………………….2ND RESPONDENT
JUDGMENT
The appellant was the plaintiff in the lower court where he brought a suit against both respondents claiming a portion of land measuring quarter of an acre out of land parcel No.Limuru/Kinale/Block 1/234 which he had allegedly purchased from the 2nd respondent through the 1st respondent who is his father.
It was his case in the lower court that he provided funds which he gave to his father, the 1st respondent, to purchase the said piece of land from the 2nd respondent and that he did so because of the close relationship between his father and 2nd respondent.
In the lower court he sought an order for the transfer of the said parcel of land and in the alternative a refund of Kshs.95,000/- which he had allegedly paid.After listening to the evidence from the parties, the learned trial magistrate in his judgment dated 21st May, 2007, dismissed the plaintiff’s suit on several grounds but more significantly, on the ground that the agreement was un enforceable as it was not reduced into writing as required under Section 3(3) of the Law of Contract Act Cap 23 Laws of Kenya.
In the Memorandum of Appeal dated 11th and filed on 21st June, 2007 the appellant raises several grounds of appeal.He faults the learned trial magistrate for failing to appreciate that the 2nd respondent did admit receiving money on diverse dates for the purchase of the land.The said 2nd respondent is also said to have confirmed to the court that, he does not have any problem in transferring the land to the rightful owner who is the appellant.There was also no dispute in respect of the purchase price.
I have gone through the entire record before me and note that, it is this court that made the order for the admission of the appeal.This was deliberate because I wanted the appeal to be addressed on merit in addition to the matters that were canvassed by the parties in the lower court.
When the parties appeared before me, they asked that I follow the evidence on record and decide the matter based thereon as they had nothing else to add.The foundation of any transaction in land is an agreement which under the Law of Contract Section 3(3) of Cap 23 Laws of Kenya must be reduced into writing and witnessed accordingly.In this case, no contract in the nature envisaged under the said law was produced in evidence.Even if such an agreement were produced the subject matter herein is agricultural land which needed consent under the Land Control Act.No such consent was alluded to or produced in these proceedings.
In the circumstances the proceedings had no foundation whatsoever and the learned trial magistrate was right in finding that the agreement which was oral could not be enforced.On that ground alone, this appeal shall be and is hereby dismissed with costs to the respondents.
Orders accordingly.
Dated, signed and delivered atNairobithis 27th day of September, 2010.
A.MBOGHOLI MSAGHA
JUDGE