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ELCDismissedNanyuki SPMCC No. 64 of 2008 (first appeal to the High Court)· [2017] KEELC 552 (KLR)

Isaac Ngatia Kihagi v Paul Kaiga Githui [2017] KEELC 552 (KLR)

High Court of Kenya
19 December 2017
LWL N Waithaka
5,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land sale without Land Control Board consent is void in Kenya, so the buyer lost the land but recovered his Kshs.100,000 deposit.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Nyeri (L N Waithaka, J) against the judgment of the Trial Magistrate in Nanyuki SPMCC No. 64 of 2008. The dispute arose from a 19th January 2006 sale agreement under which the appellant agreed to buy 3 acres out of Nyeri/Naromoru/1009 for Kshs.475,000/=, paying a Kshs.100,000/= deposit and taking possession. The appellant sued for specific performance or, alternatively, damages or refund, alleging breach; the respondent counter-claimed for eviction and mesne profits, contending the transaction was void under the Land Control Act for want of Land Control Board consent. The trial court held the transaction void, granted the plaintiff a refund of Kshs.100,000/= only, ordered the plaintiff's eviction, and directed each party to bear its own costs. The appellant appealed on five grounds: jurisdiction to order eviction, misinterpretation of the Land Control Act, the finding that Kshs.200,000/= was not paid, shifting of the burden of proof, and the insignificance of an undisclosed encumbrance. Disposing of the appeal by written submissions, the court held the eviction order was incidental to the determination of the parties' rights; that the TM correctly construed sections 6, 8 and 9 of the Land Control Act, with the judge expressing only an obiter personal view that the transaction was voidable rather than void but deferring to binding Court of Appeal precedent that it was void; that the appellant failed to prove payment of the Kshs.200,000/=, the burden not having shifted to the respondent; and that the encumbrance was not decisive. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction to order eviction after finding the agreement void

Holding

The trial court had power to order eviction since it was incidental to the determination of the parties' rights over the suit property.

Reasoning

The court distinguished the authorities relied on by the appellant because the claim was not merely for eviction but for determination of rights over the suit property. Once the court found the appellant's occupation was unlawful and his remedy limited to refund, an eviction order was justified under the overriding objective.

p. 6
02

Interpretation of sections 6, 8 and 9 of the Land Control Act

Holding

The TM did not misconstrue the Act; failure to obtain consent renders the transaction void, though the judge personally considered the transaction voidable but is bound by Court of Appeal precedent.

Reasoning

The judge expressed personal reservations, reasoning that the High Court's power under section 8 to extend time implies the transaction is only voidable. However, given the binding line of Court of Appeal decisions (Tukai v Muge, Wamukota v Donati, Karuri v Gitura, etc.), the TM's reading that the transaction was void was affirmed.

p. 7
03

Payment of Kshs.200,000 and burden of proof

Holding

The TM was justified in finding the payment unproven; the appellant failed to call the advocate who witnessed the acknowledgement and gave contradictory evidence.

Reasoning

Payment being a question of fact, the appellate court would not interfere absent misapprehension or wrong principle. The appellant did not discharge the burden of proving the payment, so the burden did not shift to the respondent to prove forgery; the fact remained unproven under section 3(4) of the Evidence Act.

p. 10
04

Significance of the undisclosed encumbrance

Holding

The TM correctly found the case did not turn on the encumbrance but on whether the parties fulfilled their obligations under the agreement.

Reasoning

The court agreed that the existence or absence of the restriction was not the basis of the appellant's case, which rested on the parties' performance of their contractual obligations.

p. 10

Legal principles established

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  • A first appellate court must evaluate afresh the evidence adduced before the trial court while bearing in mind that it neither saw nor heard the witnesses.
  • An appellate court will not disturb a finding of fact unless it is based on no evidence, misapprehension of the evidence, or a wrong principle.
  • Failure to obtain Land Control Board consent within the prescribed time renders a controlled transaction void; the only remedy of a party is recovery of consideration paid.
  • The burden of proving a payment lies on the party alleging it; where neither party proves the disputed fact, it is unproved.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Judgment of the trial Magistrate upheld (Kshs.100,000/= refund to the plaintiff and eviction order for the defendant)

Authorities

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Legislation

  • Land Control ActCap 302, sections 6(1), 7, 8(1), 9(2), 11, 22
  • Evidence ActCap 80, sections 3(4), 109
  • Civil Procedure RulesSection 1A (overriding objective)

Cases cited (12)

  • Peter Kanyari Kihumbu v. Gladys Wanjiru Migwi & Another
    (2005) e KLR
  • Makuu Kilole & 2 Others v. Nzioka Mbwii & 2 Others
    (2005) e KLR
  • Owners of Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd
    (1989) KLR
  • David Sironga Ole Tukai v. Francis Arap Muge & 2 Others
    (2014) eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
  • Wamukota v Donati
    [1987] KLR 280
  • Leonard Njonjo Kariuki v Njoroge Kariuki alias Benson Njonjo
    CA. No. 26 of 1979
  • Karuri v Gitura
    [1981] KLR 247
  • Kariuki v Kariuki
    [1983] KLR 225
  • Simiyu v. Watambamala
    [1985] KLR 852
  • Selle & Another vs. Associated Motor Co. Ltd & Others
    (1968) E.A. 123
  • Mwangi v Wambugu
    [1984] KLR 453
On appeal from
Senior Principal Magistrate's Court, Nanyuki
SPMCC No. 64 of 2008
Jurisdiction invoked
First appellate jurisdiction of the High Court over appeals from the subordinate courts (section 1A of the Civil Procedure Rules referred to; first appeal rehearing per Selle v Associated Motor Co. Ltd)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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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, "Isaac Ngatia Kihagi v Paul Kaiga Githui [2017] KEELC 552 (KLR)", Case Analysis (2017). Nanyuki SPMCC No. 64 of 2008 (first appeal to the High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/552/eng@2017-12-19

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