[2015] KEHC 4977 (KLR)
The court held that the agreement for sale of the suit property was void for want of Land Control Board consent, as required by the Land Control Act. Since the consent was not obtained within the statutory period, the contract became void and unenforceable. Consequently, the plaintiffs could not establish a prima...
Source-derived case information.
- Citation
- [2015] KEHC 4977 (KLR)
- Parties
- Plaintiff: Shariff Ali Sagaaf; Plaintiff: Ahmed Suhel; Defendant: Dorothy N. Chome
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 94 of 2014
- Procedural Posture
- Civil Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Specific Performance, Land Control Board Consent, Void Contracts, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shariff Ali Sagaaf
Plaintiff
Ahmed Suhel
Plaintiff
Dorothy N. Chome
Defendant
Procedural Posture
Civil Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interlocutory injunction restraining the defendant from dealing with the suit property pending determination of the suit.
- 2 Whether the plaintiffs are entitled to specific performance of the sale agreement in the absence of Land Control Board consent.
Ratio Decidendi
The court held that the agreement for sale of the suit property was void for want of Land Control Board consent, as required by the Land Control Act. Since the consent was not obtained within the statutory period, the contract became void and unenforceable. Consequently, the plaintiffs could not establish a prima facie case for specific performance or an interlocutory injunction. The only remedy available to the plaintiffs was a refund of the money paid, not enforcement of the contract. The application for injunction was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 22nd May, 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 94 OF 2014
1. SHARIFF ALI SAGAAF
2. AHMED SUHEL.......................................PLAINTIFFS/APPLICANTS
=VERSUS=
DOROTHY N. CHOME.............................DEFENDANT/RESPONDENT
R U L I N G
1. In the Application dated 22nd May, 2014, the Plaintiff is seeking for the following orders:
(a) That this Honourable Court be pleased to order that the Defendant, her servants, and/or agents be restrained from alienating, selling, transferring or in any way dealing with plot No. 178 Tezo Roka Settlement Scheme No.484 pending hearing and determination of the suit.
(b) Costs of this application.
2. The Application is premised on the grounds that the Respondent has refused to transfer the title to the Applicant although the Applicant purchased the same from him in 1991.
3. According to the 2nd Applicant's Affidavit, the Respondent is likely to transfer the suit property to a third party.
4. According to the Defendant's Replying Affidavit, the Applicant made a down payment of the purchase price leaving a balance of Kshs.30,000 which was to be paid after the Land Control Board consent had been given; that the Applicant never completed the transaction and that it is 23 years since the date of the agreement.
5. According to the Defendant, the consent for the Board was not obtained and he is willing to refund the deposit that was paid by the Applicant.
6. The parties' advocates filed brief submissions, in which they reiterated their clients' respective cases. I have considered those submissions and the documents annexed on the Affidavits.
7. The Plaintiffs' claim is for specific performance.
8. The Plaintiff has not denied that indeed the consent of the board was required before the suit property could pass to him.
9. According to the agreement dated 4th June 1991, the balance of the purchase price was to be paid by the Plaintiff after the Consent of the Board is granted.
10. Section 6(1) and 8 of the Land Control Act provides that the Consent of the Land Control Board must be obtained within six months of the making of an agreement of agricultural land before a sale can be effected.
11. If the consent of the Board is not obtained, the agreement becomes void and the purchaser is only entitled to a refund of the money paid.
12. It is trite law that an order of specific performance cannot be granted where the agreement of sale is unenforceable. The agreement between the Plaintiffs and the Defendant being void for want of consent is unenforceable.
13. The editors of Chitty on Contract, 30th Edition, Volume One at paragraph 27-003observe as follows:
“The jurisdiction to order specific performance is based on the existence of a valid, enforceable contract.......it will not be ordered if the contract suffers from some defect, such as failure to comply with formal requirements or mistake or illegality which makes the contract invalid or unenforceable.”
14. In the absence of the Consent of the Board. I find and hold that the Plaintiffs have not established a prima facie case with chances of success, in so far as their claim is for specific performance. In the circumstances, the Plaintiffs' application for an order of injunction fails.
15. The Application dated 22nd May, 2014 is hereby dismissed with costs.
Dated and delivered in Malindi this 15th day of May,2015.
O. A. Angote
Judge