[2014] KEHC 707 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

E & L NO. 43 OF 2012

KIBIWOTT TANUI...............................................PLAINTIFF

VERSUS

LAWRENCE PANYAKOO.............................. DEFENDANT

JUDGMENT

(Suit by plaintiff seeking eviction of defendant and permanent injunction; defendant claiming that land was sold to him; no consent of the land control board issued; agreement in absence of consent of the land control board cannot be enforced; defendant also claiming land by way of adverse possession; such claim mentioned in defence but not pleaded in counterclaim; no copy of register annexed to pleading or produced; no evidence to support such claim; such claim disallowed; judgment entered for plaintiff)

A. INTRODUCTION AND PLEADINGS

This is an old suit commenced by way of plaint on 4 October 2000. The plaint was later amended on 27 June 2007. In the amended plaint, it is pleaded that the plaintiff is the registered proprietor of the land parcel Uasin Gishu/1467 (although the land is actually Uasin Gishu/Kimumu/1467) which land measures approximately 0. 4 Ha. The plaintiff has pleaded that pursuant to an understanding made in 1997, the plaintiff allowed the defendant to build a temporary structure on the land, and that the defendant would pay a consideration of Kshs. 100,000/=. It is pleaded that contrary to the understanding, the defendant defaulted in paying the consideration of Kshs. 100,000/=. The plaintiff now wants the defendant evicted from the land and also seeks mesne profits from the year 1997 to the date of judgment. He also wants the defendant permanently restrained from the suit land.

In his amended defence and counterclaim, the defendant has pleaded he bought the suit land way back in the year 1982 and that in the alternative, he is entitled to it by way of adverse possession. He has pleaded that he purchased the land for a consideration of Kshs. 4,000/= which he paid in full. He has pleaded that the two had agreed that once the plaintiff got title, he would transfer the same to the defendant. He denied that there was any understanding as alleged by the plaintiff. In the counterclaim, the plaintiff has sought orders that he be declared the absolute owner of the suit land. He has asked that the suit land be transferred to him and for a permanent injunction against the plaintiff.

B. EVIDENCE OF THE PARTIES

The plaintiff and defendant gave evidence to support their respective positions. None called any other witness.

The plaintiff testified that he was allocated the land parcel Uasin Gishu/Kimumu/1469 by the Government in the year 1976. The land measured 5 acres. He testified that he sub-divided the land in the year 1997 into several plots of 1/4 each and one acre. He stated that the defendant showed interest in purchasing the 1 acre plot but no agreement was entered into as he was awaiting for title to be processed. He got the title in the year 1997. He stated that after he got title, he engaged the defendant so that they can make an agreement but they failed to agree. He stated that earlier in the year 1982, the defendant had given him kshs. 4,000/= as a commitment fee. He testified that he wants the defendant evicted from the said land as he refused to enter into an agreement and has no claim over the land.

In cross-examination, he denied that there was any agreement between himself and the defendant. A copy of an agreement dated 18 March 1982 was put to him and he stated that the document is strange to him. He stated that they have never gone to the Land Control Board for consent and denied that he ever signed an application for consent. He agreed receiving the Kshs. 4,000/= and allowing the defendant occupation of the land.

The defendant on the other hand testified that the plaintiff sold to him the land in the year 1982. They wrote an agreement before an advocate and he paid Kshs. 4,000/= as agreed. At that time the land was within a head title comprising of 5 acres. He was shown the 1 acre and he entered it and fenced it. He produced the agreement of 18 March 1982 as an exhibit. He stated that they made an application for consent of the Land Control Board. The same was also produced as an exhibit. However, when they appeared, the plaintiff declined to give consent. He stated that he has complained before the Land Disputes Tribunal which ruled in his favour and also to village elders. He did not however produce any evidence of such determinations.

C. SUBMISSIONS OF COUNSEL

Mr. Nyachiro for the plaintiff submitted that there was no contract between the parties. He also submitted that the consent of the Land Control Board was never obtained. He submitted that the plaintiff cannot therefore claim to have purchased the property and could only claim the sum of Kshs. 4,000/= as a debt. He submitted that the defendant is a trespasser and asked the court to assess mesne profits. He relied on the cases of Joshua Selelo Mututhua v Esther Kanini Nzimbi & Another, High Court at Milimani, ELC Case No. 1 of 2013; Philip Kibirech Ng'etich v Peter Owich Mangula & Others, Eldoret E&L No. 553 of 2012; and Stanley Njehia Nganga v Leonard Ngatia Kiragu, Nakuru High Court Civil Suit No. 1 of 2000.

On the other hand, M/s Walter Wanyonyi for the defendant argued that the defendant purchased the suit land from the plaintiff in the year 1982 and consideration was paid. He submitted that the act of the defendant in failing to give consent was malicious. He submitted that the plaintiff's case cannot succeed for failure to produce the head title which is parcel No. 1467. He stated that the plaintiff's actions amounted to fraud and misrepresentation and his title is therefore liable to be cancelled by dint of the provisions of Section 26 of the Land Registration Act, 2012. He submitted that the plaintiff wants to defraud the defendant the one acre in issue. He submitted that he who comes to equity must come with clean hands. He also submitted that the defendant's occupation came before the plaintiff obtained title and therefore the orders of eviction are not available to him. He relied on the case of Pentecostal Assemblies of God vs Peter Gathungu & 9 Others, Kitale HCCC No. 4 of 2006 (2011) eKLR. He further submitted that the defendant has been on the land for the last 32 years and stated that although the counterclaim does not seek orders of adverse possession, the same is mentioned in the defence and should be considered.

D. DECISION

It is with the above pleadings, evidence and submissions that I have to decide this suit.

The claim of the plaintiff is that he is the owner of the suit land. He produced the title deed which shows that he became registered as proprietor on 16 December 1997. Both parties agree that this title emanated from a sub-division of land that was 5 acres then. The plaintiff has denied the existence of any agreement between himself and the defendant over the purchase of the suit land. Instead, it was his evidence that he only received Kshs. 4,000/= as a commitment fee from the defendant.

The defendant on the other hand asserts that he purchased the suit land through an agreement of 18 March 1982. I have seen the said agreement. It is drawn by M/s AGN Kamau Advocate. It is an agreement between the plaintiff and defendant. The agreement states that the plaintiff is owner of a 5 acre piece of land known as plot No. 235 in Kimumu Farm. The acreage being sold is one acre, for a consideration of Kshs. 4,000/=, which is said to be paid in full. Possession for the land was granted. The signatures are attested by Mr. AGN Kamau. On my part, I have no reason to doubt the existence of the said agreement. The plaintiff himself agreed that he received a sum of Kshs. 4,000/=. This was certainly in relation to the said agreement. I am prepared to hold that on a balance of probabilities, there was an agreement whereby the plaintiff sold to the defendant one acre, which now comprises of the suit land.

The defendant testified that they then made an application for consent to the Land Control Board. I have seen the application for consent. Although the plaintiff asserted that the document was strange to him, I think the document is authentic. However, there nothing in the application which shows that the same was lodged or that consent was granted. Indeed, the defendant himself agreed that consent was never given by the Land Control Board. The parties seem to be in agreement that consent of the Land Control Board was required but that none was issued. In such a case, the provisions of the Land Control Act, CAP 302, Laws of Kenya, apply.

For our purposes, Section 6, 7 and 8 of the Act are important and I will therefore set them out in full. They provide as follows :-

6. (1) Each of the following transactions -

(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;

(b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 for the time being apply;

(c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area, is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

7. If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22.

8. (1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto:

Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

(2) The land control board shall either give or refuse its consent to the controlled transaction and, subject to any right of appeal conferred by this Act, its decision shall be final and conclusive and shall not be questioned in any court.

(3) For the purposes of subsection (1), an application shall be deemed to be made when it is delivered to the authority prescribed in the manner prescribed.

(4) An application under subsection (1) shall be valid notwithstanding that the agreement for the controlled transaction is reduced to writing, or drawn up in the form of a legal document, only after the application has been made.

It will be seen from S. 6 above, that one of the controlled transactions is a sale. Under S. 8, an application for consent is to be made within 6 months of the agreement. The effect of failure to have consent to a controlled transaction is that such transactions are nullified by operation of law. The only remedy is a refund of the amount paid as noted in S. 7 of the Land Control Act. There have been numerous decisions on this point one of which is the case of Kariuki v Kariuki (1983) KLR 225. In the case, the Court of Appeal upheld the provisions of the Land Control Act, and asserted that a transaction that requires the consent of the Land Control Board is null and void if no consent is issued. The court further affirmed that the only remedy is a refund of any money paid under the transaction and that no general or special damages are recoverable.

In absence of the consent of the Land Control Board, the defendant cannot assert title to the suit land by virtue of purchase, for their agreement of 18 March 1982 has been voided by operation of law. Counsel for the defendant submitted that the plaintiff proceeded to register himself as proprietor by way of fraud because he knew of the defendant's interest. A more or less similar argument was raised in the case of Kariuki v Kariuki and the court of appeal had this to say :-

"When a transaction is clearly stated by the express terms of an Act of Parliament to be void for all purposes for want of the necessary consent, a party to the transaction which has become void cannot be guilty of fraud if he relies on the act and contends that the transaction is void." (At p227)

I am therefore unable to hold that the action of the plaintiff of obtaining title to the suit land was fraudulent. Indeed no fraud was ever pleaded nor has any fraud been demonstrated to me by the defendant. There was also mention of equity, but it is trite law that equity does not override any express provisions of the law.

In his defence, the defendant mentioned that he is entitled to the suit land by adverse possession. However, in the counterclaim, the defendant never sought a prayer that he be declared owner by dint of adverse possession. When the matter proceeded before me, I asked counsel for the defendant whether the case of the defendant is based on adverse possession or on purchase, and he informed me that the defendant is not asserting title by way of adverse possession. I must say that the submissions of counsel for the defendant that the defendant's claim by way of adverse possession be considered has rather caught me by surprise. I think it is an ambush on the part of the plaintiff and the same ought to be disregarded.

But even if I was to consider the same, I do not think that the claim for adverse possession would have succeeded. First, no extract of the title was ever annexed to the counterclaim nor produced in evidence. I cannot therefore tell the history of the suit land. Apart from stating that he has been in possession since 1982, no other evidence was tabled to demonstrate that his possession has been open, and uninterrupted. For one to sustain a claim for adverse possession, he must demonstrate that he possessed the land for a period of an uniniterrupted period at least 12 years, nec vi (without force) nec clam (without secrecy) and nec precario (without permission). These ingredients were never demonstrated to me by evidence.

Reliance was made upon the case of Pentecostal Assemblies of God v Peter Gathungu & Others to support the argument that the plaintiff got title while the defendant was in possession and that the defendant has an overriding interest. That case is distinguishable from this one, since in this case, the defendant got into possession by dint of an agreement, albeit unenforceable, and the plaintiff did not find the defendant in possession when he acquired title. That argument, which was also not pleaded, must fail.

The upshot of the above is that the defendant's counterclaim must fail. Neither do I have reason to deny the plaintiff the prayers of eviction and permanent injunction. Although the plaintiff asked for mesne profits, no evidence was led to demonstrate the loss and extent thereof. I am therefore unable to make any assessment on mesne profits and make no award for the same.

As to costs, I must say that I am appalled by the conduct of the defendant. True, the law is on his side, but I find his conduct morally reprehensible. I am unable to bring myself to award costs to him. Each party shall bear their own costs.

I sympathise with the defendant who may have been in possession of the suit land for a considerable duration of time. This is another case that brings out the tyranny of the Land Control Act. Despite my sympathy, the law is unfortunately not on his side. He needs to vacate the suit land. I will allow him 3 months to do so. If he does not vacate after 3 months, the plaintiff is at liberty to apply for an order of eviction.

In summary, I make the following orders :-

(a) As against the defendant, I declare that the plaintiff is the legal proprietor of the land parcel Uasin Gishu/Kimumu/1467.

(b) I order the defendant to vacate the land parcel Uasin Gishu/Kimumu/1467 within 3 months from the date hereof and in default, the plaintiff is at liberty to apply for an order of eviction.

(c) Upon vacating the suit land the defendant be permanently restrained from being upon, entering, utilizing or in any other way dealing with the land parcel Uasin Gishu/ Kimumu/1467.

(d) The claim for mesne profits is disallowed.

(e) The counterclaim of the defendant is hereby dismissed.

(f) There shall be no orders as to costs.

Judgment accordingly.

DATED AND DELIVERED AT ELDORET THIS 11TH DAY OF NOVEMBER 2014

JUSTICE MUNYAO SILA

ENVIRONMENT AND LAND COURT AT ELDORET

Delivered in the presence of:

Mr. P.Kuria holding brief for Mr. Nyachiro for the plaintiff

Mr. H.O. Aseso holding brief for Mr. J.M Momanyi for defendant.