Momo v Chibeu (Civil Appeal 169 of 1986) [1988] KECA 100 (KLR)
The bottom line
#The Court of Appeal confirmed a land sale was void because the buyer never applied for Land Control Board consent within the six-month deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a competent application for Land Control Board consent pending before the Board
- 2.Whether the agreement for sale of the suit land was void for want of the requisite Land Control Board consent
- 3.Whether the learned Judge erred in failing to consider the appellant's application for extension of time for consideration by the Land Control Board
Key legal issues
#Whether a competent application for Land Control Board consent was pending before the Board
No. The application forms were prepared and forwarded to the District Officer more than a year after the agreement, without the forms being signed by the respondent and without any High Court order extending the six-month period under the proviso to section 8(1).
Section 8(1) requires an application for consent to be made in the prescribed form within six months of the agreement, with the High Court empowered to extend the period only where sufficient reason exists. The application here was delivered long after expiry of the six months and no extension of time was sought from the High Court. The court therefore agreed with the trial judge that there was no competent application pending before the Board within the meaning of section 8(3).
Whether the agreement for sale of the agricultural land was void for want of consent
Yes. Being a controlled transaction requiring Land Control Board consent, and no consent having been obtained, the agreement was void under section 6(1)(a) of the Land Control Act.
It was common ground that the suit land was agricultural land and the sale was a controlled transaction. Since no competent application for consent was ever pending and no consent was obtained, the agreement fell foul of section 6(1)(a) of the Land Control Act and was void for all purposes. The appellant could not invoke section 9(2), which only operates upon refusal of a competent application.
Whether a controlled transaction remains subsist while an application for consent is pending before the Board
The court declined to decide this question as it did not arise on the facts, no competent application having been pending.
The appellant had argued that where an application for consent is pending, neither party can take advantage of the lack of consent. The court found that this submission was premised on a competent application, which did not exist. Since the validity of the application had been determined against the appellant, the broader question of the subsistence of pending transactions did not fall to be decided.
Legal principles established
#- An application for Land Control Board consent must be made within six months of the agreement in the prescribed manner; an application delivered late without a High Court extension of time is not a competent application pending before the Board.
- A controlled transaction for which consent has not been obtained within the statutory framework is void under section 6 of the Land Control Act.
- Section 9(2) of the Land Control Act (avoidance upon refusal of consent) presupposes a competent application for consent pending before the Board.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear his own costs
- 3.The sum of Kshs 16,500 held by counsel Mr Azangalala to be refunded to the appellant forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal (statutory appeal from the High Court; specific provision not cited in the judgment)
Relief refused
#The appellant's appeal against the High Court judgment for the respondent (removal of caution and eviction)
The agreement for sale of agricultural land was void for lack of Land Control Board consent, as no competent application for consent was made within six months and no extension of time was sought
Costs
Each party to bear his own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It must follow from this that the agreement for sale was void for all purposes for lack of consent under section (6) of the Act with the result that this appeal fails and is dismissed.
there was plainly no competent application for consent pending before the Board, in the precise wording of sub-section (3) of Section 8 of the Act, delivered to the authority prescribed in the manner prescribed.
It goes without saying that section 9(2) envisages the existence of, and only comes into play when there is, a competent application for consent pending before the Board.
The order of the Court therefore is that the appeal is dismissed with each party bearing his own costs.
Issues in the judgment
#Minor typographical errors in the copy of the judgment, including 'ofiered' for 'offered', 'suficient' for 'sufficient', 'dificulty' for 'difficulty', and 'each part' for 'each party' in the costs paragraph.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Momo v Chibeu (Civil Appeal 169 of 1986) [1988] KECA 100 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/100/eng@1988-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.