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ELCPartially AllowedNot stated in judgment (plaint dated 7th November 2013)· [2017] KEELC 748 (KLR)

Bob Marsellus Oile v Joseph Okelo Odeyo [2017] KEELC 748 (KLR)

Environment and Land Court
8 November 2017
837 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 and ordered the deposit refunded, because the seller lacked a confirmed grant and Land Control Board consent was never obtained.

What this practically means

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Executive summary

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The Plaintiff sued for refund of Ksh.300,000/= with interest from 8th November 2010, being the deposit paid under a written agreement dated 8th November 2010 for the sale of one hectare of land parcel Kisumu/Korando/2156 at Ksh.2,000,000/=. The Defendant denied the claim, asserting that performance was frustrated by succession cause challenges over the estate of his deceased father, Odeyo Nyangare, in whose name the land remained registered. The court framed three issues: who was in breach, the amount of the deposit, and costs. On the evidence, the court found that the agreement was reduced to writing and acknowledged receipt of a Ksh.300,000/= deposit. It held that the Defendant lacked capacity to sell estate land without a confirmed grant under Sections 2, 45, 71 and 82 of the Law of Succession Act, and that the agreement became void for want of Land Control Board consent within six months under Sections 6 and 8 of the Land Control Act. Section 7 of that Act renders the deposit recoverable within six years under Section 4(1)(a) of the Limitation of Actions Act. However, the court also found the Plaintiff failed to prove readiness to pay the Ksh.1,700,000/= balance, so both parties were equally responsible for frustrating the agreement. Judgment was entered for the Plaintiff for refund of Ksh.300,000/= with interest at court's rate from the date of filing suit, with each party bearing his own costs.

Key legal issues

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01

Capacity to sell estate land of a deceased person

Holding

The Defendant lacked capacity to sell as the land was still registered in his deceased father's name and he had no confirmed grant

Reasoning

The land parcel Kisumu/Korando/2156 remained registered in the name of Odeyo Nyangare, deceased. Sections 2, 45, 71 and 82 of the Law of Succession Act prohibit intermeddling with a deceased's estate before a confirmed grant. The Defendant's contracting to sell therefore could not be performed lawfully.

p. 2
02

Effect of absence of Land Control Board consent

Holding

The sale agreement became void for want of the statutory consents within six months as required by Sections 6 and 8 of the Land Control Act

Reasoning

The agreement for sale of agricultural land did not receive Land Control Board consent within the six-month statutory period. Under Sections 6 and 8 of the Land Control Act, such a transaction is void. Section 7 nonetheless permits recovery of monies paid, subject to the six-year limitation period.

p. 2
03

Which party was in breach

Holding

Both parties contributed to the frustration of the agreement; the Defendant could not perform without a confirmed grant and the Plaintiff failed to prove readiness to pay the balance of Ksh.1,700,000/=

Reasoning

The Defendant could not lawfully convey the land for want of a confirmed grant. Equally, the uncontradicted evidence was that the Plaintiff informed the Defendant he could not raise the balance and proposed instead to take a portion fitting the money paid. Both were therefore equally responsible for frustrating the agreement.

p. 2
04

Amount of deposit paid

Holding

The deposit was Ksh.300,000/=, as acknowledged under clause 2 of the written agreement

Reasoning

The written agreement acknowledged receipt of a deposit of Ksh.300,000/=. The court resolved the factual dispute in the Plaintiff's favour on the basis of the documentary acknowledgment.

p. 1

Legal principles established

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  • A person dealing with land registered in the name of a deceased person cannot dispose of it without a confirmed grant, under Sections 2, 45, 71 and 82 of the Law of Succession Act
  • A controlled land transaction without Land Control Board consent within six months becomes void, and monies paid under it are recoverable within six years under Section 7 of the Land Control Act and Section 4(1)(a) of the Limitation of Actions Act

Court orders

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  1. 1.Declaration that the performance of the sale of land agreement dated 8th November 2010 has been frustrated by acts and omissions of both the Plaintiff and Defendant
  2. 2.Defendant to refund Ksh.300,000/= being the deposit paid under the voided agreement, with interest at court's rate from the date of filing of the suit
  3. 3.Each party bears his own costs

Authorities

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Legislation

  • Law of Succession ActSections 2, 45, 71 and 82
  • Land Control ActSections 6, 7 and 8
  • Limitation of Actions ActSection 4(1)(a)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land sale dispute (land parcel Kisumu/Korando/2156)

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, "Bob Marsellus Oile v Joseph Okelo Odeyo [2017] KEELC 748 (KLR)", Case Analysis (2017). Not stated in judgment (plaint dated 7th November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/748/eng@2017-11-08

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