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ELCPartially AllowedNot stated in the judgment provided· [2017] KEELC 3646 (KLR)

Kibusia Arap Konga v Evans Obonyo Obiero & another [2017] KEELC 3646 (KLR)

Environment and Land Court
25 January 2017
AOA. Ombwayo
4,418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of Turbo East/Leseru Block 2 (Ainapngetik) 44 measuring 3.85 Ha since 9 December 1992, sued the defendant for vacant possession, a declaration of ownership and a permanent injunction, alleging that from March 2014 the defendant fenced the land and began constructing thereon. The defendant resisted and counterclaimed, asserting he bought a one-acre portion from Susan Cheptum Saina on 30 October 2013 for Kshs. 600,000/=, she having bought it from the plaintiff in 2007, and that he was a bonafide purchaser for value. Three witnesses testified. The plaintiff claimed he thumbprinted a document he believed was a residents' form and never sold land or received consideration. The court held the 2007 agreement was duly executed with no cogent evidence of coercion or fraud, but found no privity of contract between the plaintiff and the defendant, as the defendant was a stranger to both agreements. Relying on Dunlop Pneumatic Tyre Co Ltd v Selfridge and Agricultural Finance Corporation v Lengetia Ltd, the court held the agreements could not be enforced by or against third parties. It further found that no Land Control Board consent was obtained as required by section 6 of the Land Control Act, rendering the transactions nullities. Applying sections 24, 25 and 26 of the Land Registration Act, the court declared the plaintiff the absolute owner, ordered the defendant to give vacant possession, issued a permanent injunction against the defendant, awarded the plaintiff costs and interest at court rates, and dismissed the counterclaim with costs, holding the defendant had established no proprietary interest and that no refund of consideration could be ordered since it was not paid to the plaintiff.

Key legal issues

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01

Validity of the 2007 sale agreement and allegation of fraud/coercion

Holding

The agreement was duly executed and witnessed; the allegation of force was not supported by cogent evidence and the plaintiff thumbprinted voluntarily; no evidence of fraud was found

Reasoning

The court found the 29.12.2007 agreement executed by the plaintiff and witnessed by six independent persons. The plaintiff did not demonstrate how he was forced to thumbprint. Illiteracy did not excuse him, as signing showed he knew he was disposing of his land. No fraud was proved.

p. 4
02

Privity of contract between plaintiff and defendant

Holding

There is no privity between the plaintiff and the defendant; the defendant cannot rely on the 2007 agreement between the plaintiff and Susan Cheptum Saina

Reasoning

The 2007 agreement was between the plaintiff and Susan Cheptum Saina, who is not a party to the suit, and the 2013 agreement was between the defendant and Susan Cheptum Saina. Applying Dunlop Pneumatic Tyre and Kenyan Court of Appeal authorities, the court held the agreements could not be enforced by or against strangers to them.

p. 5
03

Absence of Land Control Board consent

Holding

Failure to obtain Land Control Board consent rendered the whole transaction a nullity in law

Reasoning

Section 6 of the Land Control Act requires consent for dealings with agricultural land in a land control area, failing which the transaction is void for all purposes. Since no consent was obtained for either transaction, the court found the transactions void and the plaintiff entitled to succeed as registered owner.

p. 5
04

Rights of the registered proprietor

Holding

Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership in the registered proprietor; the defendant established no proprietary interest

Reasoning

The register showed the suit land registered in the plaintiff's name on 9.12.1992 with title deed issued. The plaintiff's title is protected and indefeasible absent fraud or illegal acquisition, none of which was proved. The defendant therefore had no interest capable of defeating the plaintiff's title.

p. 6
05

Refund of purchase consideration

Holding

The court could not order refund of the consideration because it was not paid to the plaintiff

Reasoning

The defendant claimed refund in the alternative, but the consideration of Kshs. 600,000/= was paid to Susan Cheptum Saina, not to the plaintiff, so no refund could be ordered against the plaintiff.

p. 6

Legal principles established

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  • A contract cannot confer rights or impose obligations on any person other than the parties to it and cannot be enforced by or against a third party
  • A sale, transfer or other dealing with agricultural land situated within a land control area is void for all purposes unless the land control board consents
  • Registration vests absolute ownership in the registered proprietor and the certificate of title is prima facie evidence of indefeasible ownership save for fraud, misrepresentation or illegal/unprocedural acquisition

Court orders

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  1. 1.A declaration that land parcel known as TURBO EAST/LESERU BLOCK 2 (AINAPNGETIK) 44 measuring 3.85 Ha belongs to the plaintiff
  2. 2.An order that the defendant give the plaintiff vacant possession
  3. 3.A permanent injunction restraining the defendant, his servants, agents and/or assigns from dealing with or interfering with the plaintiff's quiet possession, use and enjoyment of the suit land
  4. 4.Costs of the suit and interest thereon at court rates granted to the plaintiff
  5. 5.Dismissal of the defendant's counterclaim with costs

Authorities

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Legislation

  • Land Control ActSection 6
  • Land Registration Act No. 3 of 2012Sections 24, 25 and 26
  • Constitution of KenyaNot specified (jurisdiction of the court invoked generally)

Cases cited (5)

  • DUNLOP PNEUMATIC TYRE CO LTD V SELFRIDGE & CO LTD
    [1915] AC 847
  • AGRICULTURAL FINANCE CORPORATION V LENGETIA LTD
  • KENYA NATIONAL CAPITAL CORPORATION LTD V ALBERT MARIO CORDEIRO & ANOTHER
  • WILLIAM MUTHEE MUTHAMI V BANK OF BARODA
  • DARLINGTON BOUROUGH COUNCIL V WITSHIRE NORTHERN LTD
    [1995] 1 WLR 68
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership, occupation and title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Kibusia Arap Konga v Evans Obonyo Obiero & another [2017] KEELC 3646 (KLR)", Case Analysis (2017). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3646/eng@2017-01-25

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