[1998] KECA 166 (KLR)
The Court held that the agreement between the appellant and the seller to seek Land Control Board consent only after the final instalment was paid placed them outside the statutory six-month period required by Section 8(1) of the Land Control Act. As a result, and in accordance with Section 6 of the Act, the...
Source-derived case information.
- Citation
- [1998] KECA 166 (KLR)
- Parties
- Appellant: William Abira Kebaki; Respondent: Edward Obino Kenyariri; Respondent: Barclays Bank of Kenya Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Land Control Board Consent, Void Transactions, Controlled Transactions, Sale of Agricultural Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Abira Kebaki
Appellant
Edward Obino Kenyariri
Respondent
Barclays Bank of Kenya Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the sale of agricultural land without obtaining Land Control Board consent within six months renders the transaction void.
- 2 Whether the parties' agreement to seek consent after full payment can override statutory requirements.
Ratio Decidendi
The Court held that the agreement between the appellant and the seller to seek Land Control Board consent only after the final instalment was paid placed them outside the statutory six-month period required by Section 8(1) of the Land Control Act. As a result, and in accordance with Section 6 of the Act, the transaction became void for all purposes after the expiry of six months from the date of the agreement. The parties' private arrangement could not override the mandatory statutory requirement. Therefore, the appeal was dismissed and the High Court's decision was affirmed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU (CORAM: CHESONI, C.J GICHERU & AKIWUMI, JJ.A CIVIL APPEAL NO. 25 OF 1997
BETWEEN
WILLIAM ABIRA KEBAKI....................................APPLICANT AND 1. EDWARD OBINO KENYARIRI 2. BARCLAYS BANK OF KENYA LTD......................RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Kisii (Justice Mbaluto) dated 11th August, 1995 in H.C.C.C. NO. 31 OF 1981) *******************
JUDGMENT OF CHESONI, C.J.
This case involved a transaction in agricultural land which was subject to the Land Control Act (Cap.302, Laws of Kenya). The facts and sequence of events are set out in the judgment of my learned brother Gicheru, J.A., so I shall not repeat them.
In the agreement of sale made between Augstino Omwamba Okundi (the seller) and William Abira Kebaki (the appellant Purchaser) the parties agreed to go to the land board for consent after the final instalment of the purchase price had been paid.
The payment of the purchase price itself was spread over a period of two years. Section 8(1) of the Land Control Board provides as follows:-
"8 (1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto."
The parties had therefore by their own agreement put themselves outside the period for obtaining the land board's consent to the transaction. I agree with the superior court (Mbaluto, J.'s) observation that:
"The position therefore is that there is no evidence that the plaintiff obtained the necessary land control board consent for the transaction he entered with the 1st defendant to purchase plot No. Nyaribari Masaba/Bomobea/1464 and 1463 as provided by Section 6 of the Land Control Act the transaction between him and the 1st defendant became void for all purposes after the expiry of 6 months of the agreement between him and the 1st defendants."
I would for the reason given above dismiss the appeal with no order as to costs.
Safe for Akiwumi J.A's order on coasts as Gicheru and Akiwumi, JJ.A agree the appeal is dismissed in the terms proposed in Gicheru, J.A's judgment. Order accordingly.
Dated and delivered at Kisumu this 23rd day of November, 1998.
Z. R. CHESONI
CHIEF JUSTICE