[2015] KEELC 668 (KLR)
The court found that the agreement for sale of the suit property was subject to the requirement of Land Control Board consent, which was not obtained within the statutory period of six months. By operation of sections 6 and 7 of the Land Control Act, the agreement became void for all purposes. Consequently, the...
Source-derived case information.
- Citation
- [2015] KEELC 668 (KLR)
- Parties
- Plaintiff: Stephen Machoka Nyaribo; Defendant: Julius Mwalimu Katana; Defendant: Elizabeth Kadzo Kazungu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 143 of 2013
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim for refund of Kshs.91,000 allowed; claim for specific performance dismissed.
- Judges
- OA Angote
- Legal Topics
- Land Sale Agreements, Specific Performance, Land Control Board Consent, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Machoka Nyaribo
Plaintiff
Julius Mwalimu Katana
Defendant
Elizabeth Kadzo Kazungu
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the agreement for sale of land between the Plaintiff and 1st Defendant is valid in the absence of Land Control Board consent.
- 2 Whether the Plaintiff is entitled to specific performance or a refund of the purchase price paid under the void agreement.
- 3 Whether the Plaintiff is entitled to interest and costs.
Ratio Decidendi
The court found that the agreement for sale of the suit property was subject to the requirement of Land Control Board consent, which was not obtained within the statutory period of six months. By operation of sections 6 and 7 of the Land Control Act, the agreement became void for all purposes. Consequently, the Plaintiff could not obtain an order for specific performance or transfer of the property. However, the law allows for recovery of monies paid under a void agreement. The Plaintiff's evidence showed payment of Kshs.103,000, but only Kshs.91,000 was pleaded in the Plaint. The court was therefore only able to order a refund of the pleaded amount, together with interest and costs.
Court Disposition
Plaintiff's claim for refund of Kshs.91,000 allowed; claim for specific performance dismissed.
Orders
- The 1st Defendant to refund to the Plaintiff Kshs.91,000.
- The 1st Defendant to pay to the Plaintiff interest on the above amount at court rates from the date of filing the suit until payment in full.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 143 OF 2013
STEPHEN MACHOKA NYARIBO..............................................PLAINTIFF
=VERSUS=
1. JULIUS MWALIMU KATANA
2. ELIZABETH KADZO KAZUNGU...................................... DEFENDANTS
J U D G M E N T
Introduction:
1. The Plaintiff moved this court by way of a Plaint dated 26th July 2013.
2. In the Plaint, the Plaintiff has averred that on 2nd October 2010, he entered into an agreement of sale with the 1st Defendant in respect of parcel of land known as Gongoni Settlement Scheme/903 and 907 at an agreed price of Kshs.150,000/-; that he paid a deposit of Kshs.50,000 and that although the completion date was to be within ninety (90) days, the Defendant has been unable to complete the transaction.
3. The Plaintiff has further averred that he has so far paid to the Defendant Kshs.91,000 for the land. The Plaintiff is claiming for vacant possession and transfer of the suit property in his favour and in the alternative, a refund of Kshs.91,000 paid to the 1st Defendant.
4. Although the Defendants were served with the Summons to Enter Appearance, they did not file their Defences.
5. The matter proceeded for formal proof on 9th October 2014.
6. The Plaintiff reiterated what has been averred in the Plaint in his evidence in chief.
7. According to the Plaintiff, PW1, after signing the agreement of 2nd October 2010, the Defendant handed to him the original letter of offer, the title deed and the duly signed transfer documents.
8. According to PW1, one (1) acre of the suit property was occupied by one Jefwa Kazungu Charo and he entered into a separate agreement with him after paying him Kshs.15,000.
9. However, the 2nd Defendant later on informed the Plaintiff that he had also purchased the suit property from the 1st Defendant.
10. It was the evidence of PW1 that he has so farm made a payment of Kshs.103,000 to the Defendant leaving a balance of Kshs.47,000 which the 1st Defendant has refused to accept
11. The Plaintiff further informed the court that the 1st Defendant has refused to obtain the consent of the Land Control Board and that he is unable to access the land. The Plaintiff produced in evidence the documents in support of his case as PEXB 1.
12. It is not in dispute that on 2nd October 2010, the Plaintiff entered into a written agreement with the 1st Defendant for the sale of two parcels of land known as plot number 903 and 907 Gongoni Settlement Scheme (the suit property).
13. I have perused the said agreement. One of the conditions required the 1st Defendant to obtained the consent of the Land Control Board. That consent has never been obtained.
14. The Plaintiff is seeking for an order of either specific performance of the agreement or for a refund of Kshs.103,000 (according to his evidence).
15. For specific performance to issue, the terms of contract sought to be enforced must be certain and precise (see Halsbury's Laws of England, Vol 44(1))..
16. The Plaintiff has admitted that although the consent of the Board was required, the same was not obtained within six months as required by the provisions of section 6 of the Land Control Act. It therefore follows that the agreement of 2nd October 2010 is void for all purposes for want of the consent of the Board (see section 7)
17. Consequently, an order of specific performance cannot issue in respect of an agreement that is void.
18. Where an agreement of sale is void for want of the consent of the Land Control Board, the Plaintiff can only claim for the money paid to the Defendant.
19. Although the Plaintiff gave evidence to show that he paid to the Defendant Kshs.103,000, he did not amend the Plaint to plead that amount. The amount pleaded in the Plaint is Kshs.91,000. That is the amount that the court can grant to the Plaintiff.
20. For the reasons I have given above, I allow the Plaintiff's Plaint dated 26th July 2013 in the following terms;
(a) The 1st Defendant to refund to the Plaintiff Kshs.91,000.
(b) The 1st Defendant to pay to the Plaintiff interest on the above amount at court rates from the date of filing the suit until payment in full.
(c) The 1st Defendant to pay the costs of the suit.
Dated and delivered in Malindi this 6th day ofFebruary,2015.
O. A. Angote
Judge