[2002] KEHC 895 (KLR)

[2002] KEHC 895 (KLR)

The court found that the appellant's agreement to purchase the land was void due to lack of Land Control Board consent within the required six months, as mandated by the Land Control Act. Therefore, the appellant could not claim ownership of the land, and his only remedy was a refund of the purchase price. The court also held that reopening the matter would not serve any useful purpose given the long-standing nature of the dispute and the fact that the land had since changed hands. The lower court's refusal to set aside the ex parte judgment was set aside, and judgment was entered for the respondents as registered owners, with the appellant awarded a refund of the purchase price. Costs...

Citation
[2002] KEHC 895 (KLR)
Parties
Appellant: Martin Werunga Kapanga; Respondent: Simon Asava Lungashi; Respondent: Moses Shuza Lungashi; Respondent: Respa M. Lungashi; Respondent: Francis Mulongo
Court
High Court
Court Station
High Court at Busia
Jurisdiction
Kenya
Judgment Date
13 March 2002
Case Number
Civil Appeal 12 of 1997
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal allowed in part
Legal Topics
Setting Aside Ex Parte Judgment, Land Sale Agreements, Land Control Board Consent, Eviction Proceedings
Source Language
English
Land and Property Civil Procedure Setting Aside Ex Parte Judgment Land Sale Agreements Land Control Board Consent Eviction Proceedings

Case Brief

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Parties

Martin Werunga Kapanga

Appellant

Simon Asava Lungashi

Respondent

Moses Shuza Lungashi

Respondent

Respa M. Lungashi

Respondent

Francis Mulongo

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the lower court properly exercised its discretion in refusing to set aside the ex parte judgment.
  2. 2 Whether the sale agreement between the appellant and Respa Mbone Lungayi was valid without Land Control Board consent.
  3. 3 Whether reopening the matter would serve any useful purpose given the lapse of time and change of ownership.

Ratio Decidendi

The court found that the appellant's agreement to purchase the land was void due to lack of Land Control Board consent within the required six months, as mandated by the Land Control Act. Therefore, the appellant could not claim ownership of the land, and his only remedy was a refund of the purchase price. The court also held that reopening the matter would not serve any useful purpose given the long-standing nature of the dispute and the fact that the land had since changed hands. The lower court's refusal to set aside the ex parte judgment was set aside, and judgment was entered for the respondents as registered owners, with the appellant awarded a refund of the purchase price. Costs...

Court Disposition

appeal allowed in part

Orders

  • The ruling of the lower court is set aside.
  • The ex parte judgment of the lower court is set aside.