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Court of AppealDismissedCivil Appeal 32 of 2005

Joseph Boro Ngera V Wanjiru Kamau Kaime & Another [2010] KECA 66 (KLR)

Court of Appeal of Kenya
12 November 2010
MKM. Ole KeiwuaJOJ. W. Onyango OtienoJNJ. G. Nyamu
4,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a land buyer get consent after the deadline because he had already occupied farmland without approval, so buyers must get Land Control Board consent first.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nakuru from the judgment of Ondeyo, J. of the High Court at Nakuru dated 21st January 2003 in H.C.C.C. No. 224 of 1987. The respondents, widows of the original owner of about 1,060 acres (LR No. 5282, Njoro), approached the appellant, a relative, to pay off their Agricultural Finance Corporation debt. The appellant paid Ksh.1,011,537/40 to AFC on the understanding that this constituted the purchase price for 300 acres of the land. Two sale agreements were executed but no Land Control Board consent was obtained, so the agreements were void under section 6 of the Land Control Act, as the parties had agreed by consent in the trial court. The trial Judge refused to extend time for applying for consent because the appellant had breached section 22 of the Act by entering and remaining in possession of the land, dismissed the respondents' claim for damages, and ordered the appellant to vacate within 90 days and the respondents to refund Kshs.1,011,537/40, with each party bearing its own costs. On appeal, the appellant argued only that the Judge should have extended time once she found a case for extension was made out. The Court of Appeal, applying Mbogo v Shah, held that the extension power under the proviso to section 8(1) is discretionary and that the Judge exercised it properly, the appellant having breached section 22 'with abandon'. The Court also held that the 90-day grace period was a normal eviction allowance, not an endorsement of the breach. The appeal was dismissed, with a rider that the refund of Kshs.1,011,537/40 be paid within 90 days failing which it would attract court-rate interest, and each party bearing its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the learned Judge, having found that the appellant had reasons to warrant granting extension of time to apply for the consent of the Land Control Board under the proviso to section 8(1) of the Land Control Act, should have refused that prayer on the ground of the appellant's alleged perpetration of an offence under section 22 of the same Act
  2. 2.Whether the Court of Appeal should interfere with the exercise of the trial Judge's discretion
  3. 3.Whether the ninety days granted to the appellant to vacate the land amounted to endorsing further breach of section 22 of the Land Control Act

Key legal issues

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01

Whether the trial Judge erred in refusing to extend time for applying for land control consent despite finding the appellant had made out a case for extension

Holding

The refusal was a proper exercise of the Judge's discretion; the appellant's conduct in breaching section 22 of the Land Control Act by entering and remaining in possession of the land was a legitimate consideration against extending time

Reasoning

Section 8(1) of the Land Control Act uses the word 'may', showing the High Court exercises discretionary powers in granting extension. Having found the appellant had reasonable grounds for delay, the Judge still had to exercise discretion and could properly weigh the appellant's conduct - entering the land, excising 300 acres and farming it contrary to section 22 even after the transaction was avoided. On a first appeal the Court re-evaluated the evidence and found no misdirection warranting interference.

p. 5
02

Whether the 90 days granted to vacate the land contradicted the Judge's finding that the appellant had breached section 22

Holding

The period was a normal allowance for an evicted party to remove his property and did not amount to endorsing or extending the offence

Reasoning

The Court held the appellant was already utilizing the land and needed time to remove fencing material, cut grass and other items. Eviction practice requires reasonable time to move out; such a grace period cannot be construed as endorsing breach of section 22. The argument that the Judge thereby endorsed the offending act was rejected.

p. 6
03

Whether the Court of Appeal should interfere with the trial Judge's discretionary decision

Holding

No grounds for interference were established; the discretion was exercised judicially and the decision was not plainly wrong

Reasoning

Applying Mbogo v Shah, the Court reiterated that an appellate court interferes with discretion only where the Judge misdirected himself in some matter and arrived at a wrong decision, or where it is manifest from the case as a whole that the Judge was clearly wrong and misjustice resulted. The Court analysed the evidence afresh, as required on a first appeal, and found none of these grounds satisfied.

p. 5

Legal principles established

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  • A Court of Appeal will not interfere with the exercise of discretion by a trial Judge unless satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Judge was clearly wrong and there has been misjustice
  • The power of the High Court to extend the six-month period for applying for land control consent under the proviso to section 8(1) of the Land Control Act is discretionary, and a decision to refuse extension will not be disturbed on appeal absent a misdirection or plainly wrong result
  • Time granted to an occupier to vacate land in an eviction is normal and is not to be construed as endorsing a breach of section 22 of the Land Control Act

Court orders

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  1. 1.Appeal dismissed
  2. 2.The respondents to pay the appellant Kshs.1,011,537/40 within ninety days of the date of the judgment, failing which interest to be paid at court rates from the date of the judgment in the superior court until payment in full
  3. 3.Each party to bear its costs of the appeal

The bench

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

MK
majority
JO
majority
JN
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 224 of 1987
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (no specific constitutional provision invoked in the judgment)

Relief refused

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Extension of time to apply for consent of the Land Control Board

The trial Judge's refusal was a proper exercise of discretion; the appellant had breached section 22 of the Land Control Act 'with abandon' by entering and remaining in possession and continuing payments despite the void transaction

p. 6

Costs

Each party to bear its costs of the appeal.

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.

In conclusion, we dismiss the appeal as we must do, but we also order that the appellant’s money – Kshs.1,011,537/40 must be paid to him within ninety days of the date hereof failing which interest will be paid on it at court rates from the date of the judgment in the superior court until payment in full. Each party to bear its costs of the appeal.
p. 6Final orders - dismissal of appeal and refund with interest
A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at wrong decision, or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the exercise of his discretion and that as result there has been misjustice.
p. 5Test for interference with judicial discretion
The proviso to section 8 (1) we have reproduced above allows the High Court to grant extension beyond six months, but it is clear to us that the High Court in doing so exercises its discretionary powers. This, in our view, is the reason why the word “may” is used by legislation in granting such powers.
p. 5Discretionary nature of extension of time for land control consent
Any person to be evicted from the land whether on trespass or not must be given time to move out. To do so is not to be construed as endorsing the breach of section 22 of the Act.
p. 6Grace period in evictions

Issues in the judgment

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minor

The judgment alternately renders the name of one of the judges who heard the case below as 'Tunoi, J.' and 'Tanui J.' in consecutive passages

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Boro Ngera V Wanjiru Kamau Kaime & Another [2010] KECA 66 (KLR)", Case Analysis (2010). Civil Appeal 32 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/66/eng@2010-11-12

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