Grace Wachuka Miano v Francis Kamau Gatiba [2016] KEELC 19 (KLR)

The court adopted the reasoning in Hannah Mugure Karago v Peter Karuri Waweru, where the Court of Appeal recognised that strict application of Sections 6 and 8 can become a tool for unscrupulous vendors. Since it was the Defendant's contractual duty under clause 8.2 to apply for consent, and he allegedly declined to do so to frustrate the sale, the court held it could not approve such dishonesty and lack of integrity, following Macharia Mwangi Maina.

Section 8 of the Land Control Act permits either party to a controlled transaction to apply for consent, but the parties' agreement expressly obliged the vendor to apply for and obtain all necessary consents and clearances at his own costs. The court therefore found it clear that the obligation rested on the Defendant, whose prevarication could not be visited on the Plaintiff.

The sale agreement was made in January 2012, before the Land Act, 2012 and Land Registration Act, 2012 came into force in May 2012, and courts have held those Acts have no retrospective application. The court also observed from the annexures that the Defendant had disposed of sub-divisions of Nginda/Samar without any spousal consent requirement, and that the Edith Nyambura Mwanjera case involved a 2013 agreement and a disputed matrimonial character, making it distinguishable.

On the affidavit evidence, the Plaintiff had paid Kshs. 450,000/- of the purchase price, performed her obligations, and showed a real risk that the Defendant, holding the original documents, would alienate the property to defeat the proceedings. The Defendant's nullity defence was found to be a guise for escaping the agreement. The court was satisfied the application should be allowed with costs in the cause.