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Court of AppealDismissedCivil Appeal No. 63 of 2016· [2017] KECA 353 (KLR)

Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] KECA 353 (KLR)

Court of Appeal of Kenya
22 June 2017
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'Inoti
3,997 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that selling farmland without Land Control Board consent voids the sale, and buying land during a court case does not protect the buyer.

What this practically means

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Executive summary

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This second appeal arose from a 1999 sale agreement over Land Parcel No. 173, Kijipwa Settlement Scheme, in which the appellant paid Kshs.450,000/= for agricultural land. The Senior Resident Magistrate's Court at Kilifi decreed specific performance, but the Environment and Land Court at Malindi (Angote, J.) on 19th December 2013 allowed the respondent's first appeal, setting aside the decree on the grounds that the sale agreement was void for want of Land Control Board consent and that the appellant had mischievously subdivided and sold portions of the land to the interested parties during the pendency of the appeal. Before the Court of Appeal (Makhandia, Ouko and M'Inoti, JJ.A), three issues fell for determination on matters of law only: the competence of the record of appeal without a certified copy of the decree, the applicability of the Land Control Act, and lis pendens. The Court affirmed the first appellate judge on all three. The absence of a certified decree was a curable technicality incompatible with substantive justice and the overriding objective. The suit premises were agricultural land; the appellant was bound by his own pleadings and the sale agreement clause requiring Land Control Board consent within ninety days, and absent such consent the agreement became void, so specific performance could not issue. The subdivision and sale to the interested parties occurred while the first appeal was pending, attracting lis pendens: purchasers pendente lite take subject to the decree regardless of good faith. Any discrepancy in the parcel description in the decree was a minor correctable error. The second appeal was dismissed with costs to the respondent; the interested parties' innocent-purchaser claims were rejected. The judgment binds subordinate courts and the Environment and Land Court on these propositions.

Key legal issues

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01

Competence of a first appeal without a certified copy of the decree

Holding

The appeal was competent; Order 42 rule 2 allows filing of the certified decree later and the omission was a curable technicality given the certified judgment was on record.

Reasoning

Order 42 rule 2 provides that where no certified decree is filed with the memorandum of appeal, the appellant may file it later within court-ordered time, and the appeal need not be rejected summarily until it is filed. The judgment itself is appealable even where no formal decree has been drawn up. Holding otherwise would contradict substantive justice and the overriding objective, and no prejudice was shown.

p. 5
02

Whether the suit premises were subject to the Land Control Act and effect of absence of consent

Holding

The suit premises were agricultural land; the transaction required Land Control Board consent within six months; without it the agreement was void and specific performance unavailable.

Reasoning

The appellant's own pleadings and the sale agreement clause 2 acknowledged the need for Land Control Board consent, and his advocate testified the premises were agricultural land. A party is bound by his pleadings. The exceptions under section 6(3) (transmission by intestacy) and settlement schemes were never his case, and the interested parties confirmed they obtained consent in their own purchase.

p. 5
03

Applicability of the doctrine of lis pendens to the interested parties

Holding

The doctrine applied; the appellant subdivided and sold the suit premises while the first appeal was pending, so the interested parties took subject to the outcome and could not claim innocent purchaser status.

Reasoning

The first appeal was lodged on 12th February 2009 and concluded on 19th December 2013; the interested parties purchased in 2010 and 2011, well within that period. The appellant knew litigation was ongoing. The doctrine rests on the principle, per Bellamy v Sabine, that alienation pendente lite would make successful determination of suits impossible, and no collusion need be proved against purchasers.

p. 6
04

Whether the first appellate court's decree referred to a wrong parcel of land

Holding

Any discrepancy in the description of the parcel was a minor omission or error capable of correction and did not invalidate the judgment.

Reasoning

The appellant argued the judgment was pronounced in respect of Kilifi/Kijipwa/173 rather than plot No. 173 Kijipwa Settlement Scheme, making it unenforceable. The Court held such discrepancies are minor errors correctable in the normal course and do not defeat the judgment.

p. 6

Legal principles established

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  • A record of appeal in a first appeal is not rendered incompetent merely because a certified copy of the decree is absent, where a certified copy of the judgment is included; the omission is a technicality to be overcome in favour of substantive justice.
  • An agreement for the sale of agricultural land without the consent of the Land Control Board obtained within six months is void and incapable of enforcement, and specific performance cannot be granted.
  • A purchaser of property pendente lite for valuable consideration is affected with notice and is bound by the judgment or decree in the pending suit, irrespective of innocent-purchaser claims or absence of an injunction.
  • Lis pendens is a doctrine of law and applies whether or not it was expressly pleaded or raised.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 1A, 1B, 2, 72, 79D
  • Civil Procedure RulesOrder 42 rule 2
  • Land Control Actsection 6, section 6(3)

Cases cited (4)

  • Kiruga v Kiruga & Another
    [1988] KLR 348
  • Onyango and Another v Luwayi
    [1986] KLR 513
  • Manwji vs U. S International University and Another
    [1976-80] KLR 229
  • Bellamy vs Sabine
    [1857] 1 De J 566
On appeal from
Environment and Land Court of Kenya at Malindi
E.L.C. Civil Appeal No. 5 of 2009
Jurisdiction invoked
Second appeal under sections 72 and 79D of the Civil Procedure Act (matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (23)

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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, "Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] KECA 353 (KLR)", Case Analysis (2017). Civil Appeal No. 63 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/353/eng@2017-06-22

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