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ELCOtherNot stated in the judgment· [2017] KEELC 2366 (KLR)

Edwin Kipkorir Ngetich v Ann Simatei & 2 others [2017] KEELC 2366 (KLR)

Environment & Land Court
14 June 2017
MSMunyao Sila
1,289 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 refused to rubber-stamp a land sale settlement, ruling it would silence the wife most affected by the sale.

What this practically means

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Executive summary

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The plaintiff sued by plaint filed on 17 October 2016 for specific performance of a sale agreement dated 2 April 2016 under which he purchased land parcels Rongai/Rongai Block 4/178 and 4/179 from the 2nd defendant for Kshs. 3,500,000/=, which was fully paid. The 1st and 3rd defendants are the vendor's wives; only the 3rd defendant signed a spousal consent. The 1st defendant lodged a restriction, asserting the land is held in trust for her and her children, that she has occupied it since 1975, and that the sale is void for want of her consent and of Land Control Board consent. The plaintiff sought specific performance, lifting of the restriction, and an injunction. At a mention on 15 May 2017, counsel for the plaintiff and for the 2nd and 3rd defendants sought to have a consent recorded by which judgment would be entered against the 2nd and 3rd defendants as prayed in the plaint, with no orders as to costs, and the 2nd and 3rd defendants to be the plaintiff's witnesses against the 1st defendant. The 1st defendant opposed adoption, arguing it legitimized an illegal transaction and defeated justice. The court held that although parties are free to enter consents, the court is not bound and must ensure agreements pass the test of legality and public policy. Adoption would decide the case without the 1st defendant's input despite her being the most aggrieved party. The court also doubted the legality of the transaction given the Land Control Act requirement of Land Control Board consent within six months, with no proof of such application. The consent was rejected; the 2nd and 3rd defendants remain free to file a defence or testify for the plaintiff, and the parties were directed to prepare for trial.

Key legal issues

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Whether the court should adopt the consent between the plaintiff and the 2nd and 3rd defendants

Holding

The consent was rejected in so far as it sought entry of judgment for the plaintiff, because it would deny the 1st defendant, the most aggrieved party, an opportunity to be heard, and its legality under the Land Control Act was doubtful

Reasoning

The court held that although parties may enter consents, the court has a supervisory role and may reject a consent that offends legality and public policy. Adoption would effectively decide the suit in the plaintiff's favour without the 1st defendant's input, leaving her no day in court. Further, no proof of an application for Land Control Board consent within six months under Section 8 of the Land Control Act was produced, an issue requiring a hearing on the merits.

p. 2

Legal principles established

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  • Parties are free to enter into consents, but the court is not necessarily bound and may accept or reject a consent; the court has a supervisory role to ensure agreements pass the test of legality and public policy
  • A consent that would determine a suit without hearing a contesting party must be rejected as it deprives that party of a hearing

Court orders

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  1. 1.The consent seeking entry of judgment against the 2nd and 3rd defendants as prayed in the plaint is rejected
  2. 2.The 2nd and 3rd defendants retain the choice whether to file a statement of defence or not
  3. 3.The 2nd and 3rd defendants may decide whether to testify for the plaintiff if they so wish
  4. 4.Parties directed to prepare their respective cases for trial

Authorities

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Legislation

  • Land Control Act, Cap 302, Laws of KenyaSection 8
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land parcels Rongai/Rongai Block 4/178 and 4/179

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, "Edwin Kipkorir Ngetich v Ann Simatei & 2 others [2017] KEELC 2366 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2366/eng@2017-06-14

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