[1998] KEHC 250 (KLR)
The court held that the agreement for sale of the suit land was void for want of Land Control Board consent, as required by law. The fact that the defendant was to pay a portion of the purchase price upon obtaining consent was immaterial, since no consent was ever obtained nor was an extension sought. The...
Source-derived case information.
- Citation
- [1998] KEHC 250 (KLR)
- Parties
- Plaintiff: Samuel Njoroge Waruhiu; Defendant: Stephen Thiongo Macharia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1346 of 1997
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Summary Judgment
- Outcome
- Plaintiff's application allowed; agreement declared void; vacant possession and costs awarded to plaintiff.
- Legal Topics
- Land Control Board Consent, Void Contracts, Summary Judgment, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Njoroge Waruhiu
Plaintiff
Stephen Thiongo Macharia
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Summary Judgment
Legal Issues
- 1 Whether the sale agreement for agricultural land is void for lack of Land Control Board consent.
- 2 Whether the plaintiff is entitled to summary judgment for vacant possession and costs.
Ratio Decidendi
The court held that the agreement for sale of the suit land was void for want of Land Control Board consent, as required by law. The fact that the defendant was to pay a portion of the purchase price upon obtaining consent was immaterial, since no consent was ever obtained nor was an extension sought. The defendant's expenditure on the land did not entitle him to retain possession, as the legal basis for his occupation—the sale agreement—was void. The plaintiff was therefore entitled to an order for vacant possession and costs.
Court Disposition
Plaintiff's application allowed; agreement declared void; vacant possession and costs awarded to plaintiff.
Orders
- The transaction is declared null and void for lack of Land Control Board consent.
- The plaintiff is granted vacant possession of the suit property forthwith.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 1346 OF 1997
SAMUEL NJOROGE WARUHIU........................................PLAINTIFF
VERSUS
STEPHEN THIONGO MACHARIA.....................................................................DEFENDANT
R U L I N G
By an agreement dated 20th July, 1995 the plantiff herein agreed to sell to the defendant his land known as title number GITHUNGURI/GITHIGA/1740. The agreed price was Kshs.660,000 of which sum of Kshs.300,000 was to be paid to the plantiff on him obtaining the Land Control Board consent of the property. The defendant took possession but did not pay Kshs.300,000/- neither was consent of the Land Control Board obtained.
The plaintiff has now moved the court by way of Notice of Motion under Order 35 R1(b) of the Civil Procedure Rules for orders that summary judgment be entered in favour of the plaintiff against the defendant as prayed in the plaint and that the costs be borne by the defendant. When this application came up for hearing it became clear that the order being sought by the plaintiff was for vacant possession for failure to contract. Both learned counsel have addressed the court on the issue and I have their submissions on record.
This sale involves Agricultural land and the Land Control Board Consent was crucial in the transaction. If the Land Control Board consent is not obtained within six months from the date of the agreement of sale then the transaction is void.
In the instant case, none was obtained neither was extension to obtain the same sought by the parties. It is immaterial now that the defendant was to pay Kshs.300,000 upon the plantiff obtaining the said consent. The fact is, without consent, the agreement for sale is void.
Some address has been made to the effect that the defendant has spent a substantial sum of money since taking possession of the land which is the subject of these proceedings. However, this is not a sufficient ground to entitle him to hold over unto the property whose basis, the agreement for sale, has become void for lack of consent.
If it is true that he spent any money, then he is at liberty to file proceedings to recover the same. As for now, the transaction must be declared null and void and plaintiff granted the order for vacant possession forthwith. The plaintiff shall also have the costs of this application. If there are any other matters remaining for argument the same can be adjudicated in the main hearing.
Orders accordingly.
Dated and delivered at Nairobi this 31st day of July 1998
A. MBOGHOLI MSAGHA
JUDGE
Mr Igeria for plantiff/applicant
Mr Patel for Thuo for defendant/respondent