[2008] KEHC 124 (KLR)
The court held that the sale of the land to the petitioner was void for lack of Land Control Board consent as required by Section 6 of the Land Control Act. The absence of consent rendered the transaction unenforceable, and the court could not give effect to the sale agreement. Consequently, the petitioner was not...
Source-derived case information.
- Citation
- [2008] KEHC 124 (KLR)
- Parties
- Applicant: Margaret Mumbi Mutahi; Respondent: Ruth Wanjiru Gitonga; Respondent: Charles Wangai Gitonga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Revision Case 417 of 2004
- Procedural Posture
- Revision Case / Judgment
- Outcome
- protest allowed; petitioner's application dismissed; grant revoked; fresh grant to respondents
- Judges
- MM Kasango
- Legal Topics
- Land Control Board Consent, Sale of Land, Confirmation of Grant, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Mumbi Mutahi
Applicant
Ruth Wanjiru Gitonga
Respondent
Charles Wangai Gitonga
Respondent
Procedural Posture
Revision Case / Judgment
Legal Issues
- 1 Whether the sale of land to the petitioner without Land Control Board consent is valid under Kenyan law.
- 2 Whether the petitioner is entitled to a share of the deceased's estate based on the alleged sale agreement.
- 3 Whether the grant issued to the petitioner should be revoked and a fresh grant issued to the protestors.
Ratio Decidendi
The court held that the sale of the land to the petitioner was void for lack of Land Control Board consent as required by Section 6 of the Land Control Act. The absence of consent rendered the transaction unenforceable, and the court could not give effect to the sale agreement. Consequently, the petitioner was not entitled to the land, and her application for confirmation of grant was dismissed. The grant previously issued to the petitioner was revoked, and a fresh grant was ordered to be issued in the names of the deceased's wife and son. Any claim for refund of the purchase price by the petitioner was to be pursued separately against the estate.
Court Disposition
protest allowed; petitioner's application dismissed; grant revoked; fresh grant to respondents
Orders
- Petitioner's application for confirmation of grant dated 22nd May 2007 is dismissed.
- Grant issued to the petitioner dated 12th August 2005 is revoked.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Revision Case 417 of 2004
MARGARET MUMBI MUTAHI ……………….. PETITIONER
Versus
RUTH WANJIRU GITONGA
CHARLES WANGAI GITONGA ……………… PROTESTORS
JUDGMENT
Joseph Gitonga Migwi Deceased died on 25th December 2002 leaving no will. A petition for Letters of Administration intestate was filed by Margaret Mumbi Mutahi after citing deceased wife, 9 children and one grand son. Petitioner petitioned on basis of being purchaser of ¼ acre of the only property belonging to this estate namely L.R TETU/UNJIRU/552. Grant was issued by the court on 12. 8.05 to the petitioner. Petitioner by summons dated 22nd May 2007 filed an application for confirmation of grant. She prayed for the property to be distributed to her 0. 25 acres absolutely and to the wife of deceased the balance of the acreage, that is, 3. 63 acres.
That application was protested to by wife of deceased and a son Charles Wangai Gitonga. In the affidavit of protest it was deponed that the family of deceased resides on the property. Further to that the alleged sale transaction between deceased and petitioner lacked the Land Control Board consent. The protest was heard by viva voce evidence. Protestor’s evidence was by Charles Wangai Gitonga. He said that he got to know petitioner when she filed the present petition. That none of the deceased family members had knowledge of the said sale transaction. However on the death of their father they found a document indicating that their deceased father had sold 50 feet by 100 feet of the property to the petitioner. That agreement was dated 16th March 2002. The agreement showed petitioner paid Kshs.60,000. He confirmed the signature appearing on the agreement was his deceased father’s signature. He referred to an acknowledgement of payment showing petitioner paid kshs.10,000, kshs.80,200 and kshs.5,000 but he was of the view that the signature was not one of his deceased father. He also said that the agreement seemed to refer to two different measurements of land that was being bought by the petitioner. That at one point it referred to 50 feet by 100 feet and at another time ¼ acre. He finally said that the Land Control Board had not given consent to the transaction but that the deceased family wished to refund petitioner kshs.60,000. The petitioner in support to her case said that deceased sold to her ¼ acres of the property. He however died before transfer was effected. She said she is a business woman and that the deceased used to attend her place of business and she used to pay him installments of the purchase price. She concluded in examination in chief by saying that she did not want to be refunded the purchase price but that rather she wanted the land she paid for.
In cross examination she confirmed she had never lived on the land and that the Land Control Board did not give their consent to the transaction. The petitioner’s claim for the land stated in the agreement of sale is defeated by its lack of consent from the Land Control Board. Section 6 of the Land Control Act Cap 302 states that such transaction;
“is void for all purpose unless the Land Control Board for the Land Control area of division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.”
That provision of the law seals the fate of the petitioner’s claim. This court cannot give effect to that transaction of sale. On whether the estate owes the petitioner the money paid to the deceased that is a matter to be decided by or an action against the estate.
Accordingly the judgment of this court is that the protestor’s claim succeeds. The petitioner’s application for confirmation of grant dated 22nd May 2007 is dismissed. The court further does hereby revoke the grant issued to the petitioner dated 12th August 2005. A fresh grant shall issue in the names of RUTH WANJIRU GITONGA and CHARLES WANGAI GITONGA. Either party is granted leave either jointly or independently to apply for confirmation of grant immediately, not withstanding that six months will not have expired. There shall be no orders as to costs.
Dated and delivered this 15th day of December 2008
MARY KASANGO
JUDGE