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ELCAllowedLand Case No. 29 of 2012· [2016] KEELC 252 (KLR)

Patrick Kimeli Chepngok v John Kirwa Rotich [2016] KEELC 252 (KLR)

Environment and Land Court
27 October 2016
1,317 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 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

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Executive summary

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The plaintiff, registered owner of LR No. Kaplamai/Sirende Block 2/Ngonyek/310, sued the defendant seeking a declaration that the agreements of 1998 (in fact 1990 and 1995) and 14/5/2008 for the sale of six acres were null and void for want of Land Control Board consent. The defendant, a retired teacher, contended that he purchased six acres for Kshs 180,000/-, took possession, and had acquired the land by adverse possession, rendering the consent issue immaterial. The court found no contention that the parties intended a sale of six acres and that Kshs 180,000/- was paid, evidenced by agreements of 27/9/1990, 3/3/1995 and 14/5/2008. On the issues, the court held that although an application for consent was made in 1993, no consent was obtained because the plaintiff declined to appear before the Board, and no extension of time was sought from the High Court; the transactions were therefore null and void. The court further held that the plaintiff's sending of Kshs 42,000/- via M-Pesa in 2012 signified rescission, rejecting the defendant's denial. On adverse possession, the court held it could not be raised in a defence but only by originating summons, and that in any event the defendant had held the last acre for barely over four years and his occupation was not peaceful, the plaintiff having destroyed his fence and sprayed his maize. Judgment was entered for the plaintiff with a declaration of nullity, a permanent injunction against the defendant, and costs to the plaintiff.

Key legal issues

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01

Whether Land Control Board consent was obtained and the effect of its absence

Holding

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.

Reasoning

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.

p. 2
02

Whether the plaintiff rescinded the agreements

Holding

The plaintiff's sending of Kshs 42,000/- via M-Pesa in 2012 signified rescission of the agreement.

Reasoning

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.

p. 2
03

Whether the defendant acquired the six acres by adverse possession

Holding

The defendant did not acquire the six acres by adverse possession.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.The defendant shall pay costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Control Actsix-month consent requirement
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.