Titus Kahunyoro Mokoh v Risper Akeyo Oginga [2018] KEELC 42 (KLR)
The bottom line
#A land sale without land control board consent became void, so the buyer's family had to vacate but got their Kshs. 70,000 deposit back.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreement for want of land control board consent
The agreement was void six months after execution as no consent was obtained under section 6(1) of the Land Control Act
The suit property was agricultural land within a land control area under the repealed Registered Land Act. The agreement (PExh 2) was therefore a controlled transaction requiring consent under section 6(1)(a). None was obtained, and under section 8(1) the application had to be made within six months, failing which the transaction became void for all purposes.
Whether the defendant's occupation amounted to trespass notwithstanding the void sale
The defendant is a trespasser; the plaintiff as registered proprietor is entitled to possession
Under sections 24, 25 and 26(1) of the Land Registration Act, 2012 the plaintiff is the absolute and indefeasible owner. The defendant's claimed overriding interest (spousal rights/trust) was unsupported by evidence, and the void agreement conferred no rights, so her occupation without permission constituted trespass justifying eviction under sections 152A and 152B of the Land Act.
Whether the defendant was entitled to any relief on her counterclaim
She was entitled to refund of the Kshs. 70,000/- paid under the void transaction
Although the defendant did not specifically plead recovery of consideration, she sought such further relief as the court deemed fit. The court invoked section 7 of the Land Control Act, which makes money paid in a void controlled transaction recoverable as a debt, and the Kariuki v Kariuki principle, awarding her the Kshs. 70,000/- with interest.
Entitlement to general damages for trespass
The plaintiff was awarded modest general damages of Kshs. 10,000/- for loss due to trespass
General damages for trespass depend on the circumstances of each case and are discretionary. The plaintiff demonstrated inconvenience caused by the defendant's occupation, justifying a token/minimal award.
Legal principles established
#- A controlled transaction under the Land Control Act becomes void for all purposes if land control board consent is not obtained within six months of the agreement
- The only remedy open to a party to a transaction void under the Land Control Act is recovery of money or consideration paid under section 7 of the Act
- A trial court may frame and determine issues not pleaded but arising from the facts or evidence adduced
Court orders
#- 1.Judgment for the plaintiff against the defendant in terms of orders (a), (b), (c) of the plaint and general damages of Kshs. 10,000/-
- 2.Judgment for the defendant against the plaintiff for Kshs. 70,000/- together with interest at court rates
- 3.Costs of suit and the counter claim to be borne by the plaintiff and defendant respectively
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over the land claim and counterclaim (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Kahunyoro Mokoh v Risper Akeyo Oginga [2018] KEELC 42 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/42/eng@2018-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.