[2022] KEHC 14175 (KLR)

Theuri v Wainaina (Civil Appeal 7 of 2019) [2022] KEHC 14175 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14175 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Civil Appeal 7 of 2019

CM Kariuki, J

October 13, 2022

Between

Grace Njeri Theuri

Appellant

and

John Mburu Wainaina

Respondent

(An appeal from the judgment of Honorable SN Mwangi senior resident magistrate in Nyahururu Chief Magistrate's Civil Case No 25 of 2014 delivered on January 29, 2019)

Judgment

1. This is an appeal by Grace Njeri Theuri, the defendant in the original action from the judgment of Honorable SN Mwangi senior resident magistrate in Nyahururu Chief Magistrate's Civil Case No 25 of 2014 delivered on January 29, 2019, whereby the learned senior resident magistrate awarded the respondent herein Kshs 60,000/= as general damages for the breach of lease agreements by the appellant herein and additionally awarded the respondent Kshs 163,404/= as special damages together with the costs of the suit.

2. The appellant, being dissatisfied with the judgment of the trial court, appealed against the entire decision on the following principal grounds:IThe trial magistrate erred and misdirected herself in awarding general damages on a void contract.II.The trial magistrate erred and misdirected herself in awarding special damages that had not been specifically pleaded and proved.III.That the trial magistrate erred and misdirected herself by relying on two reports by a witness who had not only recanted them but denied them.IV.That the trial magistrate's findings were against the weight of the evidence.V.The trial magistrate erred and misdirected herself in awarding the respondent special damages on a claim where the respondent had harvested potatoes for which he was again claiming compensation.VI.That the trial magistrate erred and misdirected herself in failing to hold that no damages were capable of being awarded in the absence of land control board consent.VII.The trial magistrate further erred and misdirected herself in relying on alleged expert witness testimony, which had been recanted and rebutted by the said witness.

3. From the trial court record, the respondent herein, the plaintiff, then instituted the suit on February 13, 2014 and, after that, amended the plaint in respect of 1¼ acre of land within the appellant's parcel of land at Simbara Scheme, which she leased to the plaintiff for a period of two years commencing January 1, 2012 to December 2013.

4. He pleaded that the appellant leased the said portion of the suit property for Kshs 15,000/= which he paid in full. They then entered into a further agreement on June 29, 2012 where the appellant leased the same portion to the plaintiff for an additional two years from December 2013 to December 2015, and he paid Kshs 15,000/= to her in full.

5. However, on September 9, 2013 and without the respondent's consent, the appellant entered into the said portion of land, harvested the potatoes belonging to the respondent, and started to plant other potatoes in total breach of their subsisting lease agreement. While in the company of her brothers, defendant further prevented the respondent from accessing the said portion of land to tend to his maize crops that had not yet matured for harvesting. The appellant also let her animals destroy part of the maize crop while she denied the respondent the right to harvest the rest.

6. On the other hand, defendant denied any stumps to be uprooted for the land that used to be cultivated before it was leased out to the respondent. She harvested the potato crop between 16th September and September 18, 2013 and sold off the produce to various parties. She stated that the respondent was only entitled to a sum of Kshs 15,000/= being the unutilized rent for the year 2015, which she had on several occasions offered to refund, but he had refused.

Appellant's submissions 7. In the instant matter, the appellant submitted that the trial magistrate erred and misdirected herself in awarding general damages based on a void contract. She stated that the lease that was the basis of the agreement was for leasing agricultural land and that according to section 6 of the Land Control Act, all transactions affecting agricultural land, namely sale, lease, mortgage, and exchange, are void for all purposes unless the land control board for the area has given consent.

8. The appellant argued that the respondent did not tender evidence that he had obtained consent from the relevant land control board for the lease that he purportedly entered into with the appellant; thus, the lease entered into between them was null and void for purposes and terms of section 7 of the Land Control Act.

9. Moreover, the appellant contended that the special damages sought were not specifically pleaded and proved. That the respondent did not prove that the appellant unlawfully harvested his potatoes valued at Kshs 69,000/=. On the contrary, evidence was submitted that the respondent harvested and sold the said potatoes.

10. Further, the respondent sought a sum of Kshs 66,310/= being the cost of production of maize. That he never produced any receipts for the alleged expenses. It was her submission that the trial magistrate erred and went on a tangent of her own by relying on alleged reports prepared by PW3 and also stated that since the appellant presented no other report to challenge that of PW3, then it was credible to be relied upon.

11. The appellant averred that the respondent also claimed a sum of Kshs 9344/= for maize damage by animals that the appellant allegedly refused the respondent to harvest. She stated that while an assessment report was produced and captured on page 17 of the appeal, the report does not indicate the parcel number allegedly visited on September 30, 2013. Further, there was no evidence that her animals had destroyed the respondent's maize.

12. In addition, the appellant stated that respondent sought a sum of Kshs 18,750/= being unutilized rent for the year, but the basis for the such amount was not proved. Further, the rent owed was Kshs 15,000/= and she had all along offered to refund the respondent.

13. It was submitted that the trial magistrate erred by relying on two reports which h been denied and recanted by the witness who testified as PW3. Having recanted the said reports and even going further to state that the 2nd report was purposely prepared to assist a friend in the intended civil case, the appellant asserted that the court ought not to have relied on the said reports as they were purely and purposely prepared and doctored to suit the claim by the respondent.

14. Reliance was placed onKajiado HCC Appeal No 14 of 2020 Kenya Women Microfinance Ltd vs Martha Wangari Kamau, Nairobi ELC No E053 of 2020 Lake Oil Limited vs David Ndegwa Kamauand Kitale HCC 76 of 2012 Ezekiel Kisorio Tanui vs Jacinta Ekai Nasak.

Respondent's submissions 15. In his submissions, the respondent pointed out that from this appeal, the following are the issues for determination: -a.Whether the respondent discharged his obligations under the lease agreements.b.Whether the appellant breached the lease agreements.c.Whether any damages are payable to the respondent by the appellant if the appellant was in breach of the lease agreement.d.Whether lack of consent of the land control board rendered the agreement for lease void and unenforceable.e.Whether the respondent is entitled to general and special damages.f.Who should pay the costs of this appeal.

16. On the first issue, the respondent submitted that by paying the required monetary consideration to the appellant, he had performed and fully discharged all his obligations under the said lease agreement.

17. Further, in the two lease agreements, the appellant, by accepting the monetary consideration, agreed to allow the respondent to cultivate and harvest the suit land for two years. However, the appellant trespassed, harvested the respondent's mature potatoes and further allowed her animals to damage the respondent's maize that had yet to ripen for harvest.

18. The respondent alleged that the default which caused him to suffer losses was on the part of the appellant and that the lease agreements were breached by the appellant not discharging her part of the obligations. Accordingly, reliance was placed on Hassan Zubeidi vs Patrick Mwangangi Kibaiya & Another [2014] eKLR where the court cited with authority the case of Nakana Trading Co Ltd vs Coffee Marketing Board 1990 -1994 EA 448 and Precast Portal structure Limited vs Riccardo Lizier & 3 Others [2015] eKLR.

19. Moreover, the respondent submitted that he is entitled to both general and special damages as awarded by the court. He suffered loss and inconvenience because the appellant breached the two lease agreements, harvesting ¾ acres of his potatoes and her cattle and destroying his maize. He relied on the cases of Speed Wall Building Technologies Limited vs County Government of Migori [2016] eKLR, Mwangi vs Kiiru [1987] eKLR, South Nyanza Sugar Co Ltd vs Hilary M Marwa [2017] eKLR and Ngina Gitiba vs South Nyanza Sugar Company Limited [2019] eKLR.

20. On whether the land control board's lack of consent rendered the lease agreement void and unenforceable, the respondent asserted that the lease agreements were short-term leases within section 58 of the Land Act. Further, section 58 (3) of the Land Act provides that a short-term lease is not a registrable interest in land; therefore, the consent of the land control board was not necessary in the instant case. Consent could only be obtained where the interest in land was to be registered.

21. The respondent submitted that he had proved that he has suffered loss and damage and lost revenue opportunity due to the appellant's breach of the lease agreements and is therefore entitled to both special and general damages and that the appellant should also pay the costs of this appeal.

22. In conclusion, he stated that the appellant intends to delay justice in this matter by causing a delay in the execution of the decree and thus denying the respondent right to enjoy the fruits of the judgment delivered in his favour. Therefore, he urged the court to find that the appeal lacks merit and that the judgment and decree of the trial court be upheld.

Analysis and determination 23. From the perusal of the record and submissions, , I have established two issues that fall for determination revolving around the issue of contract and damages i.eI.Whether there was a valid contract between the appellant and respondent, was the same breached? and who was responsible for the breach of contract? ;II.Whether the respondent was entitled to the general and special damages awarded by the trial court?

24. The court is guided in executing its mandate by the principles enumerated in the case of Selle v Associated Motor Boat Co [1968] EA 123:'The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial. The principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it and draw its conclusions. However, it should always remember that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not necessarily bound to follow the trial judge's findings of fact if it appears either that he has failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.'

25. It is undisputed that the appellant and the respondent, by way of a written agreement made on January 1, 2012, leased to the respondent a portion of 1 ¼ acre within her portion of land at Simbara Scheme for a term of two years beginning from January 1, 2012 to December 2013. The same was for a total consideration of Kshs 15,000/= which the respondent paid to the appellant. According to the respondent, by accepting the monetary consideration, the appellant agreed to allow the respondent to cultivate and harvest the said land for two years.

26. It is also undisputed that the parties herein entered into an additional agreement which was entered into on June 29, 2012 whereby the appellant leased the same portion of land to the respondent for a further term of two years between December 2013 and December 2015. The additional lease agreement was for a total consideration of Kshs 15,000/= which the respondent also paid in full to the respondent.

27. Manifestly, the appellant and the respondent had entered into a legally binding contract. However, the appellant submitted that the lease that was the basis of the agreement was for leasing agricultural land and that according to section 6 of the Land Control Act, all transactions affecting agricultural land, namely sale, lease, mortgage, and exchange is void for all purposes unless the land control board for the area has given consent. Therefore, according to her, the contract was null and void, and consequently, the trial magistrate erred and misdirected her in awarding general damages based on a void contract.

28. Section 6 of the Land Control Act, Cap 302, provides as follows: -'Transactions affecting agricultural land1. Each of the following transactions, that is to say—a.The sale, transfer, lease, mortgage, exchange, partition, or other disposals of or dealing with any agricultural land which is situated within a land control area;b.The division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (LN 516/1961) for the time being apply;c.The issue, sale, transfer, mortgage, or any other disposal of or dealing with any share in a private company or co-operative society which, for the time being, owns agricultural land situated within a land control area, is void for all purposes unless the land control board for the land control area or division in which the land is located has given its consent in respect of that transaction by this Act.'1. The core issue before me, then, is to establish whether the transaction between the parties was void for lack of consent from the land control board. The only instance where a court may interfere with a contract between parties was when there was evidence that the contract was illegal, void, voidable, or unconscionable. It is mandatory for the court to establish that the aforementioned vitiating factors are proved. In Nairobi Civil Appeal No 165 of 2007 D Njogu & Company Advocates v National Bank of Kenya Limited [2016] eKLR, the Court of Appeal stated as follows: -'Likewise, we reiterate that any contract that contravenes a statute is illegal, and the same is void ab initio and is therefore unenforceable.'

30. Notably, the issue of the effect of a failure to obtain land control board consent on a transaction has been considered in several cases. However, there has been no consensus on the issue; in essence, the question remains unsettled. The Court of Appeal in the cases of Macharia Mwangi Maina & 87 Others vs Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, the bench opted to allow a contract of sale of land to be performed despite there not being any consent from the LCB. Nevertheless, in the case of David Sironga ole Tukai vs Francis Arap Muge & 2 Others [2014] eKLR, where a different bench of the Court of Appeal arrived at a contrary decision and asserted that consent of the land control board must be granted as required by the Land Control Act.

31. In Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri (supra), the court held that:-This court is enjoined to dispense substantive justice. What is justice? Justice is conscience, not a personal conscience but the conscience of the whole of humanity (See Alexander Solhenitsya). Would the conscience of humankind allow an individual to receive the purchase price and later plead that the agreement is void? the conscience of humanity dictates that constructive trust and proprietary estoppel shall apply in such cases. Lord Denning in Hussey – vs- Palmer (1972) 3 All ER 744 held that a constructive trust is a trust imposed by law whenever justice and good conscience require it. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution.Article 159 (2) (b) of theConstitution requires that justice should not be delayed. This matter has been in the courts since 1993. The persons or groups interested in the suit property are individuals of different status in Kenyan society. Article 159 (2) (a) of theConstitution requires justice to be administered to all, irrespective of status; article 159 (2) (g) of theConstitution stipulates that justice shall be administered without undue regard to procedural technicalities. This court is a court of law and equity; equity shall suffer no wrong without a remedy; no man shall benefit from his wrongdoing, and equity detests unjust enrichment. Therefore, this court is bound to deliver substantive rather than technical and procedural justice. Accordingly, the relief, orders, and directions given in this judgment aim to provide substantive justice to all parties having a legal and equitable interest in the suit property.

32. Further, the Court of Appeal in the case of Willy Kimutai Kitilit vs Michael Kibet (Supra) agreed with the reasoning in the case above and stated that:-One of the reasons the court gave in David Sironga ole Tukai's decision for differing with the decision in Macharia Mwangi Maina (supra) was that the court, in the latter case, ignored the provisions of section 6 (2) of the Land Control Act. However, in our view, the phrase 'declaration of a trust of agricultural land' refers to an express creation of a trust by parties over agricultural land by deed or instrument as envisaged by section 36 as read with section 66 of the Land Registration Act or section 126 of the repealed Registered Land Act, and not a constructive trust or trust created by operation of the law.Similarly, equity is law, and section 6 (2) does not prohibit a court from exercising its equitable jurisdiction in adjudicating a land dispute from declaring that a party holds land in a fiduciary capacity.A court's decision being final and binding subject to appeal, it would be illogical to hold that such a decision of a court requires the consent of the land control board before it becomes final and valid.'

33. In William Kipsoi Sigei v Kipkoech Arusei & another [2019] eKLR, the court, in upholding the decision of the trial court, stated that: -1. 'We conclude that in this case, the equitable doctrines of constructive trust and proprietary estoppel were applicable and enforceable concerning land subject to the Land Control Act. We, therefore, agree with the learned judge of the Environment and Land Court that despite the lack of consent of the land control board, the doctrine of constructive trust applied to the agreement between the appellant and the 1st respondent.'

34. Furthermore, I agree with the holding of my learned sister Mumbi Ngugi JA, in the Court of appeal case of Aliaza v Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR) (June 24, 2022), where she held that: -'I recognize that there is some conflict in the jurisprudence regarding the validity of a transaction for the sale of land where no consent from the land control board has been obtained. I believe, however, that the reasoning and holdings in Macharia Mwangi Maina, William Kipsoi Sigei v Kipkoech Arusei & Another, and Kiplagat Kotut v Rose Jebor Kipngok best capture the spirit of the Land Control Act when interpreted through the prism of theConstitution of Kenya 2010, particularly section 7 of the Transitional and Consequential Provisions contained in the Sixth Schedule of theConstitution. However, I should observe at this point that these constitutional provisions were not cited and were, therefore, not the subject of consideration before the court in the Ole Tukai decision'.

35. However, it should be noted that the common thread in the above decisions was the presence of constructive trust created by court declaration from the facts and circumstances of the case and with no specific instrument which could have been laid before the land control board for application for consent. In our instant case, there is a written lease that never got land control board validation via consent.

36. Accordingly, I am not persuaded by the reasoning detailed in the above decisions obtained in the instant case in the interest of justice as underpinned by theConstitution. Accordingly, I find that the contract between the appellant and the respondent was void due to the lack of consent by the land control board.

37. The appellant has based her appeal on the fact that consent was not sought from the land control board. Accordingly, I have perused section 6 (3) of the Land Control Act, Cap 302 Laws of Kenya, which declares any transaction involving a controlled transaction on the land to be null and void if not sanctioned by the relevant land control board.

38. The latest decision of the Court of Appeal on the import of failure to obtain consent was stated recently in the case of Willy Kimutai Kitilit v Michael Kibet [2018] eKLR as follows:'A contract for the sale of land to which the Land Control Act applies is not void from inception, nor is it an illegal contract. It becomes void when no application for consent of the land control board is made or if made, it is refused, and the appeal from the refusal, if any, has been dismissed (see section 9 (2). The Land Control Act prescribes the time within which the application for consent should be made to the land control board but does not prescribe the time within which the land control board should reach a decision or the time within which any appeal should be determined. The process from the time of making the application to the time of the determination of the appeal, if any, may obviously take time. However, the requirement that an application for consent should be made within six months of the making of the agreement and the provisions of section 7 of the Land Control Act for recovery of the consideration is an indication that Parliament intended that controlled land transactions should be concluded within a reasonable time.'1. Thus, the respondent could only recover two years of rent (2014 and 2015) for an unutilized lease period Ksh 15,000/=) plus interest at court rates from the lodging dates of the suit to the date of payments and costs. Thus, appeal succeeds to that extent, so the lower court judgment is varied accordingly.2. The appellant is to get half the costs of the appeal.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 13TH DAY OF OCTOBER, 2022. ………………………………..CHARLES KARIUKIJUDGE