[2005] KEHC 659 (KLR)
The court held that the sale agreement between the plaintiff and defendant for the parcel of agricultural land was void for want of Land Control Board consent as required by Section 9(2) of the Land Control Act. Consequently, the only remedy available to the defendant was a refund of the purchase price paid. The...
Source-derived case information.
- Citation
- [2005] KEHC 659 (KLR)
- Parties
- Plaintiff: Wairimu Gitukio Muchunu; Defendant: Esther Njambi Kioi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 191 of 2004
- Procedural Posture
- Civil Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
- Outcome
- Plaintiff's claim allowed; sale declared void; refund and possession ordered.
- Judges
- DK Musinga
- Legal Topics
- Sale of Agricultural Land, Land Control Board Consent, Void Contracts, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wairimu Gitukio Muchunu
Plaintiff
Esther Njambi Kioi
Defendant
Procedural Posture
Civil Case / Formal Proof Judgment After Interlocutory Judgment Due to Non Appearance
Legal Issues
- 1 Whether the sale of agricultural land without Land Control Board consent is void under Kenyan law.
- 2 Whether the plaintiff is entitled to recover possession of the land and refund the purchase price paid by the defendant.
Ratio Decidendi
The court held that the sale agreement between the plaintiff and defendant for the parcel of agricultural land was void for want of Land Control Board consent as required by Section 9(2) of the Land Control Act. Consequently, the only remedy available to the defendant was a refund of the purchase price paid. The plaintiff was entitled to recover possession of the land, and the defendant was ordered to vacate the premises upon receipt of the refund. The court relied on statutory provisions and binding precedent to reach this conclusion, emphasizing that transactions for agricultural land without the requisite consent are null and void, and parties are restored to their original positions...
Court Disposition
Plaintiff's claim allowed; sale declared void; refund and possession ordered.
Orders
- The plaintiff shall refund to the defendant the sum of Kshs.145,000 paid as purchase price.
- The defendant shall vacate the premises upon receipt of the refund.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 191 of 2004
WAIRIMU GITUKIO MUCHUNU…..……………………..……………PLAINTIFF
VERSUS
ESTHER NJAMBI KIOI………………………………….…………..DEFENDANT
JUDGMENT
The plaintiff filed a suit against the defendant saying that on 27th March, 2000 she sold to the defendant half and acre of a parcel of land known as Bahati/Bahati Block 1/864 at an agreed purchase price of Kshs.165,000/- and the defendant paid a sum of Kshs.145,000/- and she was given possession of the said portion of land. On 10th February, 2003 she wrote a letter to the Chairman of Nakuru Land Control Board requesting the board to stop all dealings with the said parcel of land. The plaintiff said that the defendant stopped the Land Control Board from giving its consent to the said transaction because she was not satisfied with the manner in which the sub-division was carried out. She further stated that she was willing to refund the money so far paid to her and urged the court to order the defendant to vacate the said parcel of land since the said transaction was subject to consent of the Land Control Board which was never obtained and was therefore null and void.
The defendant was on 22nd July 2004 served with the plaint and summons to enter appearance but did not do so nor file any defence and the plaintiff prayed for interlocutory judgment which was entered on 21/10/04 and so the matter came up for formal proof only.
I am satisfied that the plaintiff has established her claim on a balance of probabilities. Under the provisions of Section 9(2) of the Land Control Act Cap 302 Laws of Kenya, an agreement for sale of agricultural land becomes void unless the Land Control Board for the land control area where the land is situated has given its consent.
The Court of Appeal so held in GITHU VS KATIBI [1990] K.L.R. 634 where such a transaction becomes void, only the purchase price is refundable. The plaintiff should therefore refund to the defendant a sum of Kshs.145,000/- which she paid and the defendant should thereafter vacate the said premises.
The plaintiff shall have the costs of this suit.
DATED, SIGNED & DELIVERED at Nakuru this 9th day of December, 2005.
D. MUSINGA
JUDGE
9/12/2005
Judgment delivered in open court in the presence of Mr. Mbiyu holding brief for Mr. Ikua for the plaintiff and N/A for the defendant.
D. MUSINGA
JUDGE
9/12/2005