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Court of AppealDismissedCivil Appeal No. 240 of 2015· [2020] KECA 909 (KLR)

Sunpalm LimiteD v Mohamed Siaka Ali& 3 others [2020] KECA 909 (KLR)

Court of Appeal
7 February 2020
3,024 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 valid Land Control Board consent makes the sale void, even years later.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the judgment of Mutungi, J of the Environment and Land Court delivered on 31st July 2015 in ELC Case No. 663 of 2005, which declared null and void the registration of land parcel Kilifi/Jimba/669 in favour of Sunpalm Limited, ordered its cancellation, and directed registration of the deceased plaintiff's personal representative as owner. The Court of Appeal (Sichale, J. Mohammed and ole Kantai, JJA) delivered a single judgment of the court and unanimously dismissed the appeal. The suit land was agricultural land within a land control area, so the sale was a controlled transaction under section 6(1)(a) of the Land Control Act. Although the parties attended a Land Control Board meeting on 24th October 1996, the minutes recorded the application as deferred, and Lucas Kimutai Kosilbet denied by affidavit signing the purported consent of that date; the meeting had been chaired by the District Officer, not Kosilbet. Further, the appellant's two directors were Italians, so section 9(1)(c) barred consent, and the presidential consent obtained for a beach plot purchase was held to be distinct from the exemption that provision requires. In the absence of valid consent and any waiver, the transaction was null and void. The court also held that the trial judge properly relied on filed witness statements and documents where no party called witnesses and no objection was raised at the pre-trial conference. The appeal was dismissed with costs to the 1st, 2nd and 4th respondents, affirming the decision below.

Key legal issues

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01

Whether a valid Land Control Board consent existed for the transfer of the suit agricultural land

Holding

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.

Reasoning

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.

p. 5
02

Whether presidential consent for a beach plot satisfied the requirements of section 9(1)(c) of the Land Control Act

Holding

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.

Reasoning

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.

p. 5
03

Whether the trial judge erred in relying on documents not tendered through oral testimony

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the 1st, 2nd and 4th respondents

Authorities

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Legislation

  • Land Control Act (Cap 302, Laws of Kenya)Section 6(1)(a)
  • Land Control Act (Cap 302, Laws of Kenya)Section 9(1)(c)
  • Civil Procedure RulesOrder 11 Rule 3

Cases cited (3)

  • Selle vs. Associated Motor Boat Co. of Kenya & others
    [1968] EA 123
  • David Sironga Ole Tukai vrs Francis Arap Muge & 2 others
    [2014] eKLR
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955) 22 EACA 270
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

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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, "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.