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ELCPartially AllowedNot stated in the judgment· [2014] KEELC 308 (KLR)

Agnes Wambui Kihara v Bajila Chonya Bashora [2014] KEELC 308 (KLR)

Environment and Land Court
11 July 2014
OAO. A. Angote
2,356 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an agricultural land sale without Land Control Board consent within six months is void, so the buyer lost the land.

What this practically means

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Executive summary

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The Plaintiff sued for a permanent injunction and specific performance of two agreements dated 5th June 2009 and 2nd September 2009 under which the Defendant agreed to sell her 7 acres out of LAMU/HINDI/MAGOGONI 1/716 for Kshs.350,000. She claimed to have paid Kshs.239,000, with the balance payable upon Land Control Board consent, and alleged the Defendant refused to obtain consent and instead sought to sell the property to a third party for Kshs.2,500,000. The Defendant denied the sale, contending he only received Kshs.36,000 as a loan, that he was illiterate and did not understand the agreements prepared by his 14-year-old daughter, and counter-claimed for the Plaintiff's eviction. The court found the Defendant had admitted signing both agreements and could not disown their contents on grounds of illiteracy, since the handwritten agreement was drafted by his daughter and the typed one was executed at the Settlement office before witnesses. However, since the suit property was agricultural land and no Land Control Board consent was ever obtained within the statutory six months, the agreements were void under section 6 of the Land Control Act. Specific performance presupposes a valid contract, so both the claim for specific performance and the permanent injunction failed. The Plaintiff's suit was dismissed and the Defendant's Counter-claim allowed, but the court declined to award the Defendant costs, holding that he had entered the agreement and only invoked the Land Control Act to avoid the contract. Each party was ordered to bear its own costs. The judgment was delivered in Malindi on 11th July 2014 by O. A. Angote, Judge.

Key legal issues

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01

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

Holding

The agreements relied upon by the Plaintiff are void under section 6 of the Land Control Act because the Board's consent was never obtained within six months

Reasoning

The parties agreed that the suit property was agricultural land and that no Land Control Board consent was obtained since the agreement of 2nd September 2009. The court held that the consent should have been obtained within six months of the agreement, and that the Defendant's change of mind in favour of a higher offer to a third party did not alter the statutory consequence: the agreements were void and could not support specific performance or an injunction.

p. 4
02

Defendant's claim of illiteracy and misunderstanding of the agreements

Holding

The defence of illiteracy failed because the Defendant admitted signing both agreements, one drafted by his own daughter and the other at the lands office with witnesses present

Reasoning

The Defendant admitted signing both agreements. The handwritten agreement was drafted by his daughter, who must have explained its contents to him; the typed agreement was executed at the Settlement office and witnessed by Pw 2 and an officer. The court found the Defendant could not run away from the contents of agreements he had signed.

p. 4
03

Whether the Defendant's Counter-claim for eviction should succeed

Holding

The Counter-claim was allowed, though the court declined to make the costs order in the Defendant's favour

Reasoning

Having found the Plaintiff's claim founded on void agreements, the court dismissed the suit and allowed the Defendant's Counter-claim for eviction. However, the court withheld costs from the Defendant because he had entered into the sale agreement and used the Land Control Act to avoid the contract after apparently finding a better offer from a third party.

p. 4

Legal principles established

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  • A sale or transfer of agricultural land is void for all purposes unless the Land Control Board's consent is obtained within six months of the agreement
  • Specific performance cannot be granted on a contract void for non-compliance with statutory requirements
  • Money paid under a controlled transaction that becomes void is recoverable as a debt under section 7 of the Land Control Act
  • A party who signed an agreement explained to him by a person close to him cannot disown its contents on the ground of illiteracy

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendant's Counter-claim is allowed
  3. 3.Each party shall bear his/her own costs

Authorities

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Legislation

  • Land Control ActSection 6
  • Land Control ActSection 7
  • Land Control ActSection 8 (referred to in the Defence)
  • Land Control ActSection 22 (referred to in the judgment)

Cases cited (1)

  • Openda vs AHN
    (1984) KLR 208
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Lamu County

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Agnes Wambui Kihara v Bajila Chonya Bashora [2014] KEELC 308 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/308/eng@2014-07-11

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