Fred C. Fedha & another v Edwine E. Asava Majani [2010] KECA 62 (KLR)
The bottom line
#Kenya's Court of Appeal voided an agricultural land sale that lacked Land Control Board consent and cancelled the buyer's title obtained through a flawed court order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the agreement of sale dated 1st July, 1989 was void for lack of Land Control Board consent to transfer the suit land
- 2.Whether specific performance could be ordered of a controlled transaction which had not received the Board's consent to transfer
- 3.Whether the application for consent dated 15th November, 1989 (the subject of the cross-appeal) was still pending or had lapsed/been superseded
- 4.Whether the ruling of Etyang, J. of 26th September, 2003 and the consequential orders, transfer and title issued thereunder were valid
Key legal issues
#Effect of absence of Land Control Board consent to transfer on an agreement for sale of agricultural land
The agreement was void for all purposes and could not be specifically performed
Under sections 6(1)(a) and (b) of the Land Control Act, dealings with agricultural land are void unless the Board consents. The consent granted was only for sub-division; no application for consent to transfer was ever made or granted. Specific performance of a void, illegal contract is not available in equity, and the trial court's order to 'process the transfer' was an attempt to do indirectly what could not be done directly.
Status of the 15th November 1989 dual application for sub-division and transfer
It was superseded and lapsed; it could not keep the contract alive
The dual application breached the 1983 practice instruction requiring separate applications. On the Board chairman's advice the parties filed a fresh sub-division application in 1991 and obtained consent. Board practice required renewal of an application not determined within six sittings. Even if the 1989 application were pending, specific performance required actual consent to transfer, which did not exist.
Validity of the post-judgment ruling of Etyang, J. and the consequential transfer and title
The ruling and subsequent transfer were a nullity and were set aside
The application under section 34 of the Civil Procedure Act and section 8(1) of the Land Control Act proceeded on a gross misapprehension of the judgment, which did not order specific performance of the agreement but only 'processing the transfer' dependent on the deceased's willingness. The ruling altered the judgment's character and granted additional reliefs. The deceased, by depositing the refund before expiry of 90 days, acted in conformity with the judgment. Under the overriding objective and Article 159(2)(d) the court set aside the null orders and restored the title.
Legal principles established
#- A controlled transaction over agricultural land without Land Control Board consent to transfer is void for all purposes and equity will not compel specific performance of it
- A court cannot grant a decree of specific performance unless satisfied, among other things, that the requisite statutory consent to transfer has in fact been given
- A decree of specific performance dependent on the willingness of the judgment debtor is incapable of execution and the court errs in making such an order
- A ruling on a post-judgment application founded on a misapprehension of the judgment, which alters the character of the judgment and grants reliefs not awarded at trial, is a nullity and may be set aside on appeal
Court orders
#- 1.The judgment for specific performance of the contract by processing the transfer is set aside
- 2.The Ruling and consequential orders given by Etyang, J. on 26th September, 2003 are set aside
- 3.The transfer dated 28th June, 2007 and the certificate of title for LR. No. 7060/9 (original number 7060/1/5) are cancelled
- 4.The Register in respect of LR. No. 7060/9 (original 7060/1/5) shall be rectified by deleting the name of Edwin Edward Asava Majani and registering Fred C. Fedha and Peter W. Fedha as legal representatives of the estate of Nathan Washiko Fedha
- 5.The respondent shall surrender the cancelled certificate of title to the Land Registrar Trans Nzoia for cancellation within 60 days from the date hereof
- 6.There shall be no orders as to costs of the appeal and the suit in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.C. No. 7 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act (cap. cited via sections 3A(1) and 3B(1)); Article 159(2)(d) of the Constitution invoked on procedural technicalities
Relief refused
#Respondent's cross-appeal seeking a finding that the 15th November 1989 application for consent was still pending
The court held it an academic exercise; the application was superseded by the 1991 application and the consent for sub-division
Respondent's retention of title to the suit land
The Ruling and subsequent transfer were a nullity based on gross misapprehension of the judgment
Costs
There shall be no orders as to costs of the appeal and the suit in the superior court.
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.
in the absence of the consent of the Board to transfer the suit land, the agreement of sale dated 1st July, 1989 being a controlled transaction was void for all purposes and equity would not compel specific performance of a contract which was illegal.
Before the court could grant a decree of specific performance it had to be satisfied, among other things, that the consent to transfer the suit land had in fact been given by the Board.
The order for specific performance by its character was incapable of execution and the court erred in making an order in vain.
It follows that the Ruling and the subsequent transfer of the suit land by the Deputy Registrar of the court were a nullity and not in disobedience of the court order.
For the foregoing reasons we allow the appeal to the extent that the judgment for specific performance of the contract by processing the transfer is set aside. The Ruling and consequential orders given by Etyang, J. on 26th September, 2003 are also set aside.
The transfer dated 28th June, 2007 and the certificate of title for LR. No. 7060/9 (original number 7060/1/5) are cancelled.
Issues in the judgment
#Internal inconsistency in the date of the practice instruction: the judgment first refers to it as dated 7th January, 1983 and later as 'the practice instruction of 7th November, 1983'
The post-judgment application is described both as dated 28th January, 2000 and 28th February, 1992 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred C. Fedha & another v Edwine E. Asava Majani [2010] KECA 62 (KLR)", Case Analysis (2010). Civil Appeal 84 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/62/eng@2010-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.