[2020] KEELC 3702 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

APPEAL NO. 15 OF 2019

KINUTHIA MWENDA........................APPELLANT

VERSUS

WILSON MONGERE ONGESA .....RESPONDENT

(Being an appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Molo (Hon. H.M. Nyaga, Senior Principal Magistrate) delivered on 30th April 2013 in Molo SPMCC No. 71 of 2007 Wilson Mongere Ongesa v Kinuthia Mwenda)

JUDGMENT

1. This appeal was initially filed in the High Court at Nakuru as Civil Appeal Number 77 of 2013. It was later transferred to this court and became ELC Appeal No. 15 of 2019 (Nakuru).

2. The appeal herein traces its roots to a plaint filed on 13th March 2007 by the respondent against the appellant. The respondent averred in the plaint that on 10th March 1998 he entered into an agreement with the appellant through which the appellant sold to him 4 acres of land to be excised from the appellant’s parcel of land known as Plot Number 15 Rwangondu Scheme 553. He averred that he made payments as per the agreement and the appellant put him in possession of the property. He further stated that contrary to the agreement, the appellant failed or neglected to pay to the Settlement Fund Trustees or to the Land Adjudication and Settlement Department the sum of KShs 10,412 so that legal title to the 4 acres could be transferred to him (the respondent). Owing to the said failure, the respondent paid the said amount of KShs 10,412 but the appellant still refused to transfer the property to the respondent who added that he was willing to complete the transaction. The respondent therefore sought judgment against the appellant for an order compelling him to transfer to the respondent the 4 acres out of Plot No. 15 Rwangondu Scheme 553 or in the alternative payment of present market value of 4 acres within the area or in further alternative payment of the purchase price found to have been paid and received by the appellant. The respondent also sought interest, costs and any other or further relief as the subordinate court deemed fit.

3. The appellant filed a very brief statement of defence in which he admitted the existence of the agreement as well as that the respondent made payments and that he put the respondent in possession as averred at paragraphs 3 and 4 of the plaint. He however denied that he had failed to pay the KShs 10,412 as averred by the respondent. He further averred that he wished to have the agreement rescinded because the respondent had failed to pay the balance of the purchase price.

4. Upon hearing the parties and their witnesses, Hon. H.M. Nyaga, Senior Principal Magistrate rendered judgment on 30th April 2013. The learned magistrate found that the transaction was void for want of consent of the Land Control Board, ordered the appellant to pay to the respondent the market value of 3 acres which he found the respondent to be in possession of, ordered the appellant to refund to the respondent the sum of KShs 11,100 which the respondent had paid to the Settlement Fund Trustees and ordered that each party bears own costs.

5. Aggrieved by the above decision, the appellant filed this appeal in which he urged the court to allow the appeal and set aside the judgment of the subordinate court. He listed the following grounds of appeal:

1. The Learned trial Magistrate erred in law and fact when he ordered that the plaintiff be compensated.

2. The Learned trial Magistrate erred in law and fact as having declared the agreements null and void there was no suit before court.

3. The suit herein having been dismissed there was no need for further orders.

6. This appeal was canvassed through written submissions. Although served, the respondent neither attended the hearing nor filed any submissions. In his submissions, the appellant argued only grounds 1 and 2 of the appeal and abandoned ground 3. On ground 1, the appellant argued that the trial court having found that the transaction was void for want of consent of the land control board erred when it granted the alternative prayer for payment of market value for the 3 acres without even stating what the market value was. Regarding ground 2, the appellant argued that the trial court having found that the transaction was void for want of consent of the land control board erred when it ordered compensation to the respondent arising from the null and void transaction.

7. I have considered the appeal and the submissions. This being a first appeal, the mandate of this court is to re-evaluate, re-assess and re-analyse the record and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and give reasons either way. I also bear in mind that I have neither seen nor heard the witnesses and I will therefore make due allowance in that respect. I further remind myself that it is the responsibility of this court to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence. SeeAbok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.

8. Regarding ground 1 of the appeal, I note that the respondent had sought in the alternative compensation by way of payment of “present market value” of 4 acres. Needless to state, “present market value” of the 4 acres is a question of fact which required proof by way of evidence. I have reviewed the record of the subordinate court and I note that the respondent did not tender any evidence on the value of the 4 acres. That being the case, it was not possible for the subordinate court to ascertain what the “present market value” of the 4 acres would be. Simply put, the alternative prayer was not proven and was therefore for dismissal. In any case, courts do not act in vain. By awarding the alternative without quantifying the market value, the learned magistrate gave an order that was both unenforceable and of no use to the parties. He clearly erred.

9. Under ground 2 of the appeal the appellant faulted the learned magistrate for awarding the respondent compensation despite finding that the agreement was null and void. According to the appellant, since Section 6of theLand Control Act declares such a transaction void, it was contrary to the law for the magistrate to order compensation arising from such a transaction. The section provides:

(1) Each of the following transactions that is to say—

(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;

…

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.

10. The section makes it mandatory to obtain consent of the Land Control Board in respect of transactions of inter alia sale or transfer of any agricultural land situated within a land control area. Failure to obtain consent renders such a transaction void for all purposes. Nevertheless, Section 7 of the Act offers some relief to a party who has paid purchase price pursuant to such a transaction. The section provides:

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.

11. Thus, all that can be salvaged from such a transaction is recovery of the purchase price. It must however be remembered that in appropriate cases the equitable doctrines of constructive trust and proprietary estoppel may be held to be applicable to and supersede the Land Control Act where a transaction relating to an interest in land is void and enforceable for lack of consent of the Land Control Board. SeeWilliam Kipsoi Sigei v Kipkoech Arusei & another [2019] eKLR. In this case however, no arguments or a case based on the equitable doctrines of constructive trust and proprietary estoppel were advanced. In the specific circumstances of this case, I agree with the appellant that the learned magistrate erred in awarding the respondent compensation despite finding that the agreement was null and void. Ground 2 of the appeal therefore also succeeds.

12. Nevertheless, the appellant acknowledged in his evidence that he received KShs 150,000 from the respondent as part of the purchase price. Additionally, there was evidence before the subordinate court that the respondent paid KShs 11,100 to the Settlement Fund Trustees on behalf of the appellant with a view to furthering the transaction. The respondent produced the original receipt as an exhibit before the subordinate court. The receipt shows that the payment was made on 5th January 2007, slightly over two months before the case in the subordinate court was filed. In his plaint, the respondent also sought judgment in further alternative for payment of the purchase price found to have been paid and received, costs and interest. The appellant cannot have his cake and eat it. If he must keep the land then he must refund the total sum of KShs 161,100 which the respondent paid towards acquiring the land.

13. In view of the foregoing discourse, the appeal herein succeeds in part. The judgment of the subordinate court is hereby set aside and replaced with the following orders:

a. Judgment is entered for the respondent for KShs 161,100 plus interest thereon at the court’s rates.

b. Since both parties have had some measure of success, each party shall bear own costs of this appeal as well as own costs of the proceedings before the subordinate court.

14. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 13th day of February 2020.

D. O. OHUNGO

JUDGE

In the presence of:

Ms Wangari for the appellant

No appearance for the respondent

Court Assistants: Beatrice & Lotkomoi