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ELCPartially AllowedEldoret ELC (formerly Kericho HCCC) - plaint filed 24 September 2012· [2014] KEELC 314 (KLR)

David Randich v Joel Tirop Busienei [2014] KEELC 314 (KLR)

Environment and Land Court
10 July 2014
2,877 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenyan court declared farmland sale agreements void because no Land Control Board consent was obtained; the buyer lost the land but gets his money back.

What this practically means

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Executive summary

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The plaintiff, registered owner of Nandi/Kamoiywo/1114, sued for rescission of a land sale contract, refund of the part purchase price, and eviction of the defendant, alleging the defendant failed to pay a balance of Kshs. 200,000/= and that no Land Control Board consent was obtained. The defendant admitted the sale but claimed he had bought the whole land and paid in full, including portions allegedly bought through Mary Chesang Barngetuny, and pleaded res judicata based on Kapsabet LDT Case No. 59 of 2011. The court examined five home-made agreements and found the plaintiff sold 5 acres for Kshs. 655,000/=, of which Kshs. 555,000/= was paid, leaving Kshs. 100,000/= unpaid. Payments to Mary Chesang Barngetuny could not be vouched for, as she was never the registered owner and no agreement showed she bought any portion from the plaintiff; no orders could be made against her as a non-party. The Tribunal decision was never exhibited, so the res judicata plea failed. Holding the land agricultural and subject to the Land Control Act, Cap 302, the court found no consent was obtained or applied for within six months, rendering the agreements null and void; relying on Kariuki v Kariuki, the only remedy was a refund. The suit succeeded substantially: the agreements were declared null and void, the plaintiff was ordered to refund Kshs. 555,000/= within 90 days, the defendant was found to have no rights over the land and ordered to vacate, a permanent injunction issued, and the defendant ordered to bear the plaintiff's costs.

Key legal issues

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01

Whether the defendant purchased and paid for the whole of the suit land

Holding

The plaintiff sold 5 acres through three agreements for a total consideration of Kshs. 655,000/=, of which Kshs. 555,000/= was paid, leaving Kshs. 100,000/= unpaid; the purported purchases from Mary Chesang Barngetuny cannot count as she had no capacity to sell

Reasoning

The court analysed five home-made agreements. The three between plaintiff and defendant totalled Kshs. 655,000/= with Kshs. 100,000/= outstanding. There was no agreement showing Mary Chesang Barngetuny bought any portion from the plaintiff, so she had no capacity to sell, and no orders could be made against her as a non-party. The Tribunal decision on the Kshs. 200,000/= balance was never produced.

p. 3
02

Enforceability of the agreements for want of Land Control Board consent

Holding

The agreements are null and void for want of consent; the defendant's only remedy is a refund of Kshs. 555,000/=

Reasoning

The suit land is agricultural land subject to the Land Control Act, Cap 302. Under sections 6, 7 and 8, a sale of agricultural land is void without board consent, which must be applied for within six months. No application or consent was shown for the agreements of 14 October 2007, 11 September 2010 and 14 February 2011. Following Kariuki v Kariuki, the transactions are void and only a refund lies.

p. 4
03

Res judicata based on Kapsabet LDT Case No. 59 of 2011

Holding

The plea failed because no Tribunal decision was produced in evidence

Reasoning

Although the defendant pleaded res judicata and reference was made to a Tribunal decision in interlocutory applications, no decision or document of the Tribunal was exhibited at the hearing. The court cannot refer to a decision in the absence of an exhibit, so there was no evidence before it that the suit is res judicata.

p. 3

Legal principles established

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  • A sale of agricultural land within a land control area is void for all purposes unless the land control board consents; where consent is not obtained, the transaction is null and void and the only remedy is a refund of money paid, with no general or special damages recoverable

Court orders

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  1. 1.The agreements between the plaintiff and defendant for the sale of Nandi/Kamoiywo/1114 are declared null and void for want of consent of the Land Control Board
  2. 2.The plaintiff to refund Kshs. 555,000/= to the defendant within 90 days, in default the defendant be at liberty to execute
  3. 3.The defendant has no right whatsoever over any part of Nandi/Kamoiywo/1114 and, if in possession, must move out forthwith or the plaintiff may apply for eviction
  4. 4.A permanent injunction issued barring the defendant, his servants/agents/assigns from entering, being upon, utilizing or dealing with Nandi/Kamoiywo/1114
  5. 5.The defendant to bear the costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit over title to land); not expressly stated in the judgment

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, "David Randich v Joel Tirop Busienei [2014] KEELC 314 (KLR)", Case Analysis (2014). Eldoret ELC (formerly Kericho HCCC) - plaint filed 24 September 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/314/eng@2014-07-10

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