[2011] KEHC 4221 (KLR)
The court found that the sale agreement between the parties was void for want of Land Control Board consent, as required by Section 8(1) of the Land Control Act. The defendant did not deny this fact and failed to apply for or obtain the necessary consent within the statutory period. As a result, the transaction was...
Source-derived case information.
- Citation
- [2011] KEHC 4221 (KLR)
- Parties
- Plaintiff: Peter Nyaga Ireri; Defendant: Stephen Kingori Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 131 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- Application allowed. Defence struck out. Judgment entered for plaintiff as per prayers (a) and (c). Costs and interest awarded to plaintiff.
- Judges
- GG Okwengu
- Legal Topics
- Land Control Board Consent, Void Contracts, Striking Out Defence, Trespass, Specific Performance, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nyaga Ireri
Plaintiff
Stephen Kingori Mwangi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the absence of Land Control Board consent renders the sale agreement void and unenforceable.
- 2 Whether the defendant's statement of defence discloses any triable issues.
- 3 Whether the plaintiff is entitled to judgment as prayed in the plaint.
Ratio Decidendi
The court found that the sale agreement between the parties was void for want of Land Control Board consent, as required by Section 8(1) of the Land Control Act. The defendant did not deny this fact and failed to apply for or obtain the necessary consent within the statutory period. As a result, the transaction was unenforceable, and the defendant's continued possession of the land constituted trespass. The defendant's statement of defence did not raise any triable issues, nor did he counterclaim for a refund of the purchase price. The court held that the only remedy available to the defendant was to sue for a refund of the purchase price, but not to retain possession of the land....
Court Disposition
Application allowed. Defence struck out. Judgment entered for plaintiff as per prayers (a) and (c). Costs and interest awarded to plaintiff.
Orders
- The defendant's statement of defence is struck out.
- Judgment is entered in favour of the plaintiff in terms of prayers (a) and (c) of the plaint.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 131 OF 2007
PETER NYAGA IRERI.................................................................................................PLAINTIFF
VERSUS
STEPHEN KINGORI MWANGI................................................................................DEFENDANT
R U L I N G
This is the Ruling in respect of the applicant’s application dated 5. 02. 2010. The same is brought under Order VI Rule 13 (1)b, C and d of the Civil Procedure Rules. It seeks to have the defendant’s statement of defence struck out and also prays that the court enters judgment for the plaintiff as prayed in the plait. The same is supported by the applicant’s affidavit dated 5. 02. 2010. It was served on the Respondent’s counsel and the same is opposed vide the replying affidavit dated 17. 11. 201. Although the application was duly served on counsel for the Respondent he failed to appear on the assigned hearing date. The application was therefore heard in his absence.
The Respondent was present in person and the court undertook to consider the replying affidavit along with the rest of the pleadings when preparing this ruling.
I have carefully considered the contents of the rival affidavits, the annexures thereto and also the pleading herein. From the sale agreement marked PNI’1’ it is clear that the land in question is registered under the Registered Land Act. As deponed by the Applicant in paragraph 5 of the supporting affidavit, no Land Control Board consent was applied for and none was therefore ever granted. That is actually a fact that is not denied in the Respondent’s statement of defence or in his replying Affidavit. That transaction was therefore avoided – or became voidable 6 months after the date of the said agreement after the consent of the Land Control Board was not applied for within 6 months as stipulated under Section 8(1) of *Order (4) of the Land Control Ac Cap 302 of the Laws of Kenya. The same is not therefore enforceable. By dint of Section 22 of the same Act the defendant/respondent is a trespasser on the said plot. His only recourse is to sue for a refund of the purchase price. In this case, he has not counter claimed for such a refund. The issue of whether the land was free from any encumbrances therefore becomes moot in the light of the cited provisions of Cap 302 of the Laws of Kenya.
The Respondent refers to a pending application dated 16. 11. 09 which application is nonetheless not annexed to the affidavit. There is therefore nothing for me to refer to. The only valid counter claim that the Respondent would make is one for a refund of the 500,000 Sh. he paid as part of the purchase price. Even if I was to go out of my way to consider the application dated 16. 11. 09 as it is in the court, the same is clearly irredeemably defective as it is filed under the wrong provisions of the law and it is not even accompanied by a draft counter claim to enable court to determine whether the same would raise any triable issues. In my considered view, the defendant herein has no defence at all and the said chamber summons or any other intended application is only meant to delay the conclusion of this suit. The delay is certainly in his favour as he is the party in possession of the suit premises.
In allowing this application to strike out the defence, I am not at all driven by the fact that counsel for the respondent did not appear to defend it. I have considered the replying affidavit and the law applicable. It would not have made any difference even if counsel for the Respondent was in court. The law is clearly not on the Respondent’s side. As stated earlier, his only recourse is to sue for the refund of the 500,000 Sh. There are no triable issues raised in the defence and dragging this matter to full hearing will only be delaying it and this will be very prejudicial to the plaintiff herein.
I will therefore allow this application and strike out the defendant’s defence. I will enter judgment in favour of the plaintiff/applicant in terms of prayers (a) and (c). I will not allow prayer (b) and (d). Those can be argued in the suit the defendant might file for refund of the 500,000 Sh. or in the suit pending before the High Court sitting in Nyeri IN Nyeri HCC No. 82 of 2007.
I also award the plaintiff herein the costs of this suit plus interest thereon at courts rate.
W. KARANJA
JUDGE
Signed by the above but Delivered and dated by undersigned at Embu this 31ST day of JANUARY 2011
H. M. OKWENGU
JUDGE