Christopher M. Machimbo v George Riogi Mochama [2016] KEELC 520 (KLR)
The bottom line
#A Kenyan court ordered a land seller to transfer 11 acres to a buyer who had paid in full, rejecting the seller's bid to use a missing consent to back out.
What this practically means
#Executive summary
#Key legal issues
#Extent of the land purchased and paid for
The defendant proved purchase and full payment of 11 acres, not 13; the 2005 agreement relied on for the extra 2 acres was illegible and indecipherable.
The court reviewed each agreement and the acknowledged payments totalling Kshs.1,750,000/=. The agreement for the purported 13th/12th acreage was illegible with figures of 5, 3 and 2, so it could not establish a sale. The clan meeting found 11 acres purchased and paid. The court found valid contracts existed between the parties for 11 acres.
Effect of absence of land control board consent on the sale agreements
Although the land was agricultural and consent was required, the absence of consent could not defeat the defendant's claim since he had paid in full and been put in possession.
The court acknowledged conflicting Court of Appeal decisions on land control board consent but elected to follow Macharia Mwangi Maina and Sammy Likuyi Adiema, holding that the court should consider the circumstances of the case and legislative intention, and that it would be unfair for a seller who put the purchaser in possession to rely on want of consent to resile.
Plaintiff's claim founded on a 3-acre agreement for want of land control board consent
The plaintiff's claim was dismissed for non-attendance, and the court found the plaintiff was out to defraud the defendant.
The plaintiff, though duly served, did not attend the hearing. His claim sought nullification of the 23/1/2006 agreement for want of consent, yet the evidence showed he had sold 11 acres in total. His family's unilateral re-pricing of the land at Kshs.220,000/= per acre was rejected as unfair, the agreements being valid contracts.
Remedies available on the proved counter-claim
Specific performance was ordered for the 11 acres, with a permanent injunction protecting the defendant's occupation, and costs to the defendant.
Having found valid contracts, full payment and possession, the court held this a proper case for specific performance, directing the plaintiff to transfer 11 acres, with the Deputy Registrar empowered to execute the transfer documents in default, and a permanent injunction against interference with the land.
Legal principles established
#- A plaintiff's claim not prosecuted at hearing may be dismissed, and the defendant allowed to proceed on his counter-claim.
- Where a purchaser of land has paid the agreed price and been put in possession, failure to obtain land control board consent should not be used to defeat the claim; the circumstances and the legislature's intention must be considered.
- Courts should not act mechanically in enforcing statutory provisions that have outlived their usefulness.
Court orders
#- 1.An order of specific performance directing the plaintiff to transfer 11 acres to the defendant as per the agreement between the two, failing which the Deputy Registrar of the court to sign all necessary documents to effect the transfer in favour of the defendant
- 2.A permanent injunction restraining the plaintiff or any other person acting on his behalf from interfering with the 11 acres which the defendant bought
- 3.The defendant to have costs of the dismissed claim and costs of the counter-claim
- Jurisdiction invoked
- Original civil jurisdiction of the court over land claims and counter-claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher M. Machimbo v George Riogi Mochama [2016] KEELC 520 (KLR)", Case Analysis (2016). Land Case No. 53 of 2014 (lead file, consolidated with Land Case No. 52 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/520/eng@2016-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.