[2022] KEHC 11792 (KLR)

Kaugi v Muchangi (Civil Appeal E004 of 2020) [2022] KEHC 11792 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11792 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E004 of 2020

LM Njuguna, J

July 20, 2022

Between

Roy Anthony Mugo Kaugi

Appellant

and

Jacob Muchangi

Respondent

Judgment

1. The appellant herein has moved this court by way of memorandum of appeal dated January 24, 2020wherein he has proffered the following grounds of appeal;i)The learned trial court erred in law and fact in finding that there was a valid agreement between the parties herein which was contrary to the provisions of section 6(1) of the Land Board Control Act cap 302 of Laws of Kenya.ii)The learned trial court erred in law and fact in finding that the appellant breached the said agreement despite evidence that the respondent had failed/refused and or neglected to pay the appellant the sum of Kshs. 2,000,000/=.iii)The learned trial court erred in law and fact in failing to realize that the said agreement provided that time was of essence thereby arriving at a wrong decision.iv)The learned trial magistrate erred in law and fact and misdirected himself when he failed to realize that the only remedy provided for by the Land Control Act in controlled transactions was a refund of the deposit.v)The learned trial court erred in law and fact in finding that the provisions of Land Control Act with respect to obtaining consent for transfer for land does not apply despite LR No. Gaturi/Githimu/3110 being an agricultural land and thus the agreement between the appellant and the respondent was a controlled transaction.vi)The learned trial magistrate erred in law and fact when he disregarded the appellant’s authority thereby arriving at a wrong decision.vii)The learned trial court erred in law and fact in finding that the respondent had proved his case on balance of probabilities and that the appellant was liable to pay damages despite the contrary evidence.viii)The learned trial court erred in law and facts in entering a judgment against the appellant against the weight of the evidence.

2. Reasons wherefore, the appellant urged this court to set aside the judgment delivered on April 17, 2019with costs.

3. The appellant’s case is that on or May 22, 2015, he obtained Land Control Board consent to charge his parcel of land LR No. Gaturi/Githimu/3110 to secure a loan amounting to Kshs. 1,500,000/= with National Bank of Kenya. That in or about the month of November, 2017, the appellant was served with documents to the effect that the bank was in the process of selling the said land due to the fact that he had defaulted in the loan repayment. That it was for this reason that the appellant sought for a buyer in the name of the respondent to enable him clear the outstanding loan amount. It was his submissions that vide a sale agreement, the parties herein agreed to buy and sell the suit property at Kshs. 4,000,000/= and the appellant was thus paid Kshs. 200,000/= as deposit on the date of the execution of the agreement and a further amount was to be paid on or before 06. 03. 2018; a further Kshs. 1,800,000/= was to be paid after the discharge of the original title by the bank and the release of completion documents by the vendor.

4. That the respondent failed to honour his part of the agreement by failing to pay Kshs. 2,000,000/= and this prompted the appellant to look for another buyer as the bank was keen on selling the suit land. That he proceeded to refund the respondent the amount for Kshs. 200,000/= before filing the suit in the magistrate’s court which upon hearing, the trial court delivered its judgment on the April 17, 2019, which judgment is the subject of this appeal.

5. When the appeal came up for hearing, the court gave directions on filing of submissions which both parties complied with.

6. The appellant submitted that the suit land is agricultural land and its transactions are controlled and hence the need for the appellant to acquire consent to charge the said land. That, given that no Land Board Consent was ever obtained for transfer to the respondent, the respondent was only entitled to a refund of Kshs. 200,000/= that he had paid as deposit. That it was the respondent who breached the agreement by failing to pay the 2nd installment of Kshs. 2,000,000/= by the 06. 03. 2018 as per the agreement. That it would not have been possible for the appellant to turn down money from the respondent as he stood to lose everything. Reliance was placed on the cases ofDanson Muniu Njeru v William Kiptrbet Korir and 6 others (2014) eKLR and Wasike v Swala (1985) eKLR.

7. The respondent submitted that the parties herein voluntarily entered into the sale agreement setting out the terms and conditions and wherein the respondent paid a deposit of Kshs. 200,000/= and in reference to the said agreement, a hefty penalty clause was included to ensure that parties don’t pull out of the agreement. That the appellant terminated the agreement within a week and then proceeded to refund the deposit on April 6, 2018. It was his case that the appellant having breached the said contract, it was incumbent upon it to pay the agreed damages. Further, it was submitted that the agreement herein cannot fall for lack of consent of the Land Board given that the appellant is the one responsible for having terminated the agreement entered into, between him and the respondent. As a result, the consequences of such a breach is to be found in the default clause of the contract and not the provisions of Land Control Act. In the end, this court was urged to find that the appeal herein lacks merit and the same should be dismissed.

8. This court has perused the record and the same shows that the case the subject matter of this appeal is mainly on land. The sale agreement which was allegedly breached is in relation to land which in my considered view forms a dominant factor in the case. Thus in my considered view, the alleged breach is just an auxiliary issue to the subject matter of the appeal herein which is land.

9. It is important to note that, with the enactment of the Environment and Land Court Act of 2012, the jurisdiction to determine disputes relating to ownership and use of land is bestowed on the Environment and Land Court. It is my considered view, as such, that issues arising out of the instant appeal are not within the jurisdiction of this Honourable Court. [See the decision of the Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No 19 of 2018- paragraph 40).This is for the reason that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing as jurisdiction must be acquired before a case can be heard.[See the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR].

10. Similarly, in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others[2012] eKLR, where the Supreme Court held as hereunder;A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.[Also see Articles 165 (5) and 162 (2) of the Constitution; and section 13 of the Environment and Land Court Act].

11. From a reading of article 162 of the Constitution, it is clear that the Constitution intended to create special courts with special jurisdiction in land matters. That jurisdiction is not donated to the High Court.

12. In view of the foregoing, I therefore hold that;i.This court is bereft of jurisdiction to determine the appeal herein.ii.The same is struck out with no orders as to costs.

13. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 20TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………..…..for the Appellant…………………………………….for the Respondent