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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 352 (KLR)

Janet Chepngetich Kosgei v Ruth Chelimo Kios [2017] KEELC 352 (KLR)

Environment and Land Court
22 November 2017
AOA. OMBWAYO
1,198 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 ruled that a buyer of agricultural land without Land Control Board consent cannot claim the land—only a refund of the money paid.

What this practically means

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Executive summary

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The plaintiff sued the defendant, the registered owner of Kapsaret/Kapsaret Block 5 (Kapteldon)/11 (approximately 2.18 Ha), alleging sale agreements of 29 May 2013 (formalised 22 May 2014) for 1.5 acres at Kshs.560,000/=, and a supplementary agreement of 21 May 2015 for a further 0.2 acres at Kshs.60,000/=. Part of the price was to be used to redeem the parcel from a charge to National Bank of Kenya Ltd. The plaintiff sought refund at current market value or, in the alternative, specific performance (or execution by the Executive Officer), an interim injunction, general damages for breach, a declaration of entitlement to 1.7 acres, and costs. The defendant, though served, did not enter appearance or file a defence, and the plaintiff's unchallenged evidence established total payments of Kshs.610,000/=. The court held that under Sections 6 to 9 of the Land Control Act Cap 302, transactions over agricultural land in a land control area are void for all purposes without Land Control Board consent, which must be obtained within six months; even declarations of trust are caught, and paying or receiving money under a void transaction is a criminal offence. As no consent was obtained, the whole transaction was null and void. The plaintiff was therefore not entitled to specific performance or the current market value of the land, but the consideration paid was recoverable as a debt. Judgment was entered for the refund of Kshs.610,000/= with 10% interest per annum from 22 May 2014 to date. No costs order was pronounced.

Key legal issues

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01

Effect of failure to obtain Land Control Board consent within six months for a transaction over agricultural land

Holding

The sale of 1.5 acres plus the supplementary sale of 0.2 acres were null and void for want of Land Control Board consent; the plaintiff could not get specific performance but could recover the consideration as a debt

Reasoning

The court invoked Sections 6 to 9 of the Land Control Act, which render transactions over agricultural land in a land control area void unless consent is obtained within six months, subject to the High Court's power to extend the application period. No consent was obtained here, so the transaction was void for all purposes, including any declaration of trust. The court stressed the Act's sanction: payment under a void transaction is even a criminal offence. The plaintiff's money was therefore recoverable as a debt, but not the property's current market value.

p. 3

Legal principles established

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  • Transactions involving agricultural land in a land control area are void for all purposes without Land Control Board consent, and consideration paid under such a void transaction is recoverable as a debt

Court orders

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  1. 1.Judgment for the plaintiff that she be refunded Kshs.610,000/= being the money paid as consideration
  2. 2.Interest on Kshs.610,000/= at 10% per annum from 22.5.2014 to-date

Authorities

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Legislation

  • Land Control ActSections 6 to 9
Jurisdiction invoked
Original civil jurisdiction over the land dispute; relief framed under the Land Control Act Cap 302

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, "Janet Chepngetich Kosgei v Ruth Chelimo Kios [2017] KEELC 352 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/352/eng@2017-11-22

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