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Court of AppealAllowedCivil Appeal No 47 of 1989

Githu v Katibi [1990] KECA 47 (KLR)

Court of Appeal of Kenya
5 November 1990
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that buying agricultural land without Land Control Board consent makes the sale agreement void, killing any right to file a caveat.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against the judgment of Porter J in the High Court, delivered on 20 December 1988, allowing an originating summons under section 57(8) of the Registration of Titles Act, cap 281 and Order XXXVI rule 3B of the Civil Procedure Rules extending the appellant-plaintiff's caveat beyond the 45 days allowed by the Registrar's notice. The underlying dispute concerned an agreement to purchase a portion of LR 2259/52, agricultural land covered by the Land Control Act, cap 302, for which no land control board consent was ever sought. The Court of Appeal, in a unanimous judgment delivered by Nyarangi JA with concurring judgments by Masime and Cockar JJ A, held that the agreement was for a controlled transaction under section 6(1) of the Land Control Act and became void for want of consent. It rejected counsel's attempt to distinguish an agreement for a controlled transaction from the transaction itself, holding the distinction 'one without a difference', and followed EK Shamalla v Gerry JB Chibeu on voidness where no consent application was pending. A void agreement conferred no registrable interest, so the plaintiff had no right to a caveat under section 57(1) of the Registration of Titles Act. The appeal was allowed with costs and the costs of the High Court proceedings, and the High Court's order of 20 December 1988 was vacated forthwith.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether consent under section 6 of the Land Control Act ought to have been obtained for the sale agreement
  2. 2.Whether a caveat under section 57(1) of the Registration of Titles Act, cap 281 is an instrument whose registration is void without the land control consent
  3. 3.Whether the High Court was right to extend the duration of the plaintiff's caveat

Key legal issues

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01

Whether the sale agreement was a controlled transaction under section 6(1) of the Land Control Act

Holding

Yes - the agreement for sale of agricultural land was a controlled transaction caught by section 6(1), not excluded by section 6(3).

Reasoning

The court applied the statutory definition of 'controlled transaction' as one of the transactions specified in section 6(1) and not excluded by section 6(3). The subject-matter of the agreement was sale of agricultural land, one of the controlled transactions, and the agreement fell within no exclusion. Section 9(2) confirms that a sale agreement is an agreement for a controlled transaction.

p. 2
02

Effect of failure to obtain land control consent on the caveat

Holding

The void agreement conferred no registrable interest, so the plaintiff had no right to a caveat under section 57(1) of the Registration of Titles Act and the extension order could not stand.

Reasoning

Since no application for consent was ever made, the agreement became void. A void agreement creates no legal interest capable of registration; consequently the plaintiff could not claim any right under section 57(1) of the Registration of Titles Act and the High Court had no basis to extend the caveat.

p. 2
03

Whether an agreement for a controlled transaction is distinct from the transaction itself for voidness purposes

Holding

No - the distinction is 'one without a difference'; an agreement for a controlled transaction becomes void just as the transaction does.

Reasoning

Counsel for the respondent argued that only the controlled transaction, not the agreement for it, becomes void absent consent. Masime JA rejected this, holding that an agreement must exist before an application for consent can be made, and it would be contrary to the policy of the Act to hold that a transaction becomes void while the agreement to be party to it does not. The position follows EK Shamalla v Gerry JB Chibeu.

p. 3

Legal principles established

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  • An agreement for the sale of agricultural land is an agreement for a controlled transaction under section 6(1) of the Land Control Act and becomes void where the requisite land control board consent is not obtained.
  • Where no valid application for land control consent has been made, the agreement becomes void for all purposes and confers no legal interest capable of supporting a caveat under the Registration of Titles Act.
  • A transaction cannot be revived unilaterally; revival after the statutory period requires the parties jointly to seek the High Court's extension of time under the proviso to section 8(1), amounting to a novation.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Costs of the High Court proceedings awarded to the appellant
  3. 3.The order of the High Court dated December 20, 1988 vacated forthwith

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

concurring

Wrote the judgment

Agreed the appeal must be allowed, reasoning that the trial judge himself had found the sale agreement void under the Land Control Act and could not then validate it; held that an agreement for a controlled transaction becomes void for all purposes where no application for consent was ever made, following EK Shamalla v Gerry JB Chibeu.

The agreement therefore became void for all purposes in terms of the Act.p. 3
concurring

Wrote the judgment

Agreed with the judgments of Nyarangi and Masime JJA and concurred in the orders proposed by Nyarangi JA.

I agree with them and have nothing to add. The appeal should therefore be allowed and I concur with the orders as proposed by Nyarangi JA.p. 3
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No 4758 of 1987
Jurisdiction invoked
Appeal from the High Court (first appeal under the Court of Appeal's appellate jurisdiction); originating summons under section 57(8) of the Registration of Titles Act, cap 281 and Order XXXVI rule 3B of the Civil Procedure Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am driven to the conclusion that any such agreement shall become void unless the Land Control Board for the land control area where the land is situated has given the necessary statutory consent.
p. 2Voidness of unconsented agreement for sale of agricultural land
It would be contrary to the policy of the Act to hold that a transaction becomes void for want of consent but that an agreement to be party to a transaction does not.
p. 3No distinction between transaction and agreement for voidness purposes
The agreement therefore became void for all purposes in terms of the Act.
p. 3Effect of no application for consent
I, therefore, would allow the appeal with costs and costs of the High Court proceedings and order that the order dated December 20, 1988 be vacated forthwith.
p. 2Disposition - appeal allowed and High Court order vacated

Issues in the judgment

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minor

The judgment gives inconsistent dates for the sale agreement: the narrative states the agreement was entered on January 20th, 1988, while Masime JA states it was made on January 29, 1988.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Githu v Katibi [1990] KECA 47 (KLR)", Case Analysis (1990). Civil Appeal No 47 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/47/eng@1990-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.