Sunpalm LimiteD v Mohamed Siaka Ali& 3 others [2020] KECA 909 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that buying agricultural land without valid Land Control Board consent makes the sale void, even years later.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid Land Control Board consent existed for the transfer of the suit agricultural land
No valid consent was obtained. The minutes of the 24th October 1996 meeting show the application was deferred; the meeting was chaired by the District Officer, not L.K. Kosilbet, who denied signing the purported consent; and section 9(1)(c) barred consent to a foreign-owned company.
The suit land was agricultural land, so the transaction was controlled under section 6(1)(a) of the Land Control Act. The minutes recorded the application as deferred, and Kosilbet deponed that it was not considered. Even the purported consent showed a consideration inconsistent with the sale agreement. The appellant's directors being Italians, section 9(1)(c) prohibited consent absent presidential exemption. The court agreed with the trial judge's holding that no valid consent existed and that the transaction was null and void.
Whether presidential consent for a beach plot satisfied the requirements of section 9(1)(c) of the Land Control Act
It did not. Presidential consent for purchase of a beach plot is a distinct requirement from the exemption contemplated under section 9(1)(c) for disposals to non-citizens or non-citizen-owned companies.
The application for presidential consent disclosed that the appellant's two directors were Italians. The court held that such presidential consent 'is not what is envisaged under S. 9 (1) (c)' which forbids consent to disposals to persons who are not Kenyan citizens or companies whose members are all citizens. In the absence of a waiver of that provision, the transaction remained null and void regardless of the beach-plot consent.
Whether the trial judge erred in relying on documents not tendered through oral testimony
He did not. Where all parties opted not to call witnesses and no objection was raised at the pre-trial conference to reliance on filed witness statements and documents, the judge properly decided on those documents.
The court noted that a pre-trial conference was conducted and none of the parties objected to the production of the documents relied upon. Counsel for the 4th respondent had invoked Order 11 Rule 3 of the Civil Procedure Rules permitting a court to admit statements without calling their makers. Since none of the parties wished to tender oral evidence, the trial judge could not be faulted for placing reliance on the tendered documents. This ground therefore failed.
Legal principles established
#- A sale, transfer or other dealing with agricultural land within a land control area is void for all purposes unless the relevant Land Control Board has given its consent to the transaction.
- Presidential consent for the purchase of a beach plot is distinct from, and does not satisfy, the exemption required under section 9(1)(c) of the Land Control Act forbidding the disposal of land to non-citizens or companies whose members are not citizens.
- Where parties opt not to call witnesses and do not object at a pre-trial conference to reliance on filed witness statements and documents, a trial judge properly decides the case on those documents and cannot be faulted for not hearing oral evidence.
- On a first appeal, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the 1st, 2nd and 4th respondents
- On appeal from
- Environment and Land Court at Nairobi
- ELC Case No. 663 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeal as of right from the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sunpalm LimiteD v Mohamed Siaka Ali& 3 others [2020] KECA 909 (KLR)", Case Analysis (2020). Civil Appeal No. 240 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/909/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.