Patrick Kimeli Chepngok v John Kirwa Rotich [2016] KEELC 252 (KLR)
The bottom line
#A Kenyan court voided a land sale because Land Control Board consent was never obtained within six months, and rejected the buyer's adverse possession claim.
What this practically means
#Executive summary
#Key legal issues
#Whether Land Control Board consent was obtained and the effect of its absence
No consent was obtained within the statutory six months and no extension was sought from the High Court; the transaction therefore became null and void for want of consent.
The defendant produced an application for consent dated 1/3/1993, but consent was not granted because the plaintiff declined to appear before the Board. The Land Control Act requires consent within six months, failing which the transaction is void unless the High Court extends time. No extension was sought, so the 1990, 1995 and 2008 agreements were rendered null and void.
Whether the plaintiff rescinded the agreements
The plaintiff's sending of Kshs 42,000/- via M-Pesa in 2012 signified rescission of the agreement.
The plaintiff produced an M-Pesa statement (exhibit 3) showing Kshs 42,200/- sent to the defendant's phone, the extra Kshs 200/- covering withdrawal charges. The defendant declined to receive the money and sent it back. The court rejected the defendant's claim that the only money he received was from Isaac Bungei, which he returned.
Whether the defendant acquired the six acres by adverse possession
The defendant did not acquire the six acres by adverse possession.
Adverse possession cannot be raised in a defence but only through originating summons. In any event, the last acre was bought on 14/5/2008 and the suit was filed on 6/3/2012, barely over four years. Further, the defendant's occupation was not peaceful: the plaintiff destroyed his fence in 1995 and sprayed his maize, and the defendant had obtained judgment against the plaintiff for the damage.
Legal principles established
#- A land sale transaction for which the required Land Control Board consent was not obtained within six months, and no extension of time was sought, becomes null and void for want of consent
- A claim of adverse possession cannot be raised as a defence; it must be brought by originating summons as provided under the relevant statutes
- Possession interrupted by acts of the registered owner, such as destruction of crops and fencing, is not peaceful and cannot found adverse possession
Court orders
#- 1.A declaration that the agreements between the plaintiff and the defendant, more particularly the one of 14/5/2008, is null and void for want of the consent of the Land Control Board
- 2.A permanent injunction against the defendant, his agents or authorised persons from claiming, entering, ploughing or in any manner interfering with LR No. Kaplamai/Sirende Block 2/Ngonyek/310
- 3.The defendant shall pay costs of the suit to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Patrick Kimeli Chepngok v John Kirwa Rotich [2016] KEELC 252 (KLR)", Case Analysis (2016). Land Case No. 29 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/252/eng@2016-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.