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ELCPartially AllowedMalindi HCCC (application dated 5th June, 2013)· [2013] KEELC 118 (KLR)

Katana Mranja Angore v Ezekiel K.Masha [2013] KEELC 118 (KLR)

High Court of Kenya (Environment and Land Division, Malindi)
25 July 2013
2,683 words in judgment
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The bottom line

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Kenya's High Court confirmed that selling agricultural land without Land Control Board consent within six months voids the sale entirely.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's notice of motion dated 5th June 2013 seeking an interim injunction to restrain the Defendant from entering upon, harvesting crops on, or wasting land known as Ngomeni Squatters Settlement Scheme/961, or alternatively an order of preservation of the crops. The Plaintiff deponed that he had agreed to sell the land to the Defendant for Kshs.120,000; the Defendant paid part of the price, and neither party obtained Land Control Board consent, rendering the sale void under section 6(1) of the Land Control Act (Cap 302). The Defendant/Respondent countered that he had paid the full purchase price, had been in occupation and cultivating since 2004, and intended to counter-claim for specific performance. Both counsel made oral submissions. The court held that the suit property was agricultural land; that the Land Control Act applies to agricultural land whether registered or not; that the agreement dated 22nd August 2004 satisfied section 3(3) of the Law of Contract Act but became void for want of Board consent; and that the Defendant's continued possession and harvesting under the void agreement was wrongful and criminal contrary to section 22 of the Land Control Act. Finding a prima facie case with chances of success and irreparable damage not compensable in damages, the court allowed the application in terms of prayers (b) and (e). No express costs order was made.

Key legal issues

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01

Validity of the sale agreement for want of Land Control Board consent

Holding

The transaction for sale of the suit property became void as neither party obtained the consent of the Land Control Board

Reasoning

The suit property is admitted to be agricultural land with coconut trees. Both parties admitted the agreement of 22nd August 2004 related to the suit property, and neither obtained Land Control Board consent within six months as required by section 6(1) of the Land Control Act. The court applied the settled line of authority holding such transactions void for all purposes, notwithstanding the defendant's submission that the land was unregistered in 2004.

p. 4
02

Whether continued possession and harvesting by the Defendant should be restrained

Holding

Yes; continued possession under a void agreement is wrongful and criminal, and injunctive relief was warranted

Reasoning

The court found the Defendant's continued possession wrongful and criminal after six months from the agreement, relying on Rioki Estate Co. (1970) Ltd v Kinuthia Njoroge. Continued usage risked damage not compensable by damages, satisfying the injunction test. The Defendant's claim to the crops could not be countenanced as it would be contra-statute under section 22 of the Land Control Act.

p. 4
03

Whether the Land Control Act applies to unregistered land

Holding

It does; the Act covers dealings in any agricultural land within a land control area, including unregistered land

Reasoning

Counsel for the Respondent argued the Act was inapplicable because the land was unregistered in 2004. The court rejected this, reasoning that a controlled transaction is defined by reference to dealings with agricultural land situated within a land control area, and the definition embraces disposals or dealings with any such land, whether or not registered.

p. 3

Legal principles established

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  • A sale, transfer or other dealing in agricultural land within a land control area is void for all purposes unless the Land Control Board consent is obtained within six months of the agreement
  • The Land Control Act applies to dealings in agricultural land whether or not the land is registered
  • Continued possession or use of land in furtherance of a void controlled transaction is a criminal offence under section 22 of the Land Control Act
  • Money paid under a void controlled transaction is recoverable as a debt under section 7

Court orders

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  1. 1.The Plaintiff's Application dated 5th June, 2013 allowed in terms of prayers (b) and (e)

Authorities

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Legislation

  • Law of Contract Act (Cap 23)section 3(3)
  • Land Control Act (Cap 302)section 6(1)
  • Land Control Act (Cap 302)section 6(3)
  • Land Control Act (Cap 302)section 7
  • Land Control Act (Cap 302)section 22
  • Penal Codegeneral (fraud provisions referred to by Respondent)

Cases cited (5)

  • Rioki Estate Co. (1970) Ltd v Kinuthia Njoroge
    (1977) KLR 146
  • Gabriel Makokha Wamalwa v Sylvester Nyongesa Danati
    Civil Appeal No. 6 of 1996
  • Githinji and another v Munene Irangi
    Nyeri Civil Appeal No. 131 of 1987
  • Onyango and Another v Laywayi
    (1986) KLR 513 – 516
  • Malindi HCCC No. 118 of 2012 (court's own ruling)
    Malindi HCCC No. 118 of 2012
Jurisdiction invoked
Original civil jurisdiction of the High Court over the suit land (Ngomeni Squatters Settlement Scheme/961)

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, "Katana Mranja Angore v Ezekiel K.Masha [2013] KEELC 118 (KLR)", Case Analysis (2013). Malindi HCCC (application dated 5th June, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/118/eng@2013-07-25

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