Wilbert Kipsang Choge & another v Cleophas Kirwa Melly & another [2018] KEELC 260 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of the land sale agreement absent Land Control Board consent
The transaction was null and void because no consent of the Land Control Board was obtained
The court found the agreement dated 23.5.2015 involved agricultural land subject to the Land Control Act, Cap 302. Sections 6 and 8 require consent of the Land Control Board for such transactions; none was ever obtained, rendering the agreement void ab initio. Combined with the plaintiffs' failure to pay the full consideration within the 90-day completion period, the defendants' rescission and refund were effective, and the plaintiffs' continued occupation became trespass.
Breach of the completion period and payment terms
The plaintiffs failed to pay the balance of the consideration within the 90-day completion period, entitling the defendants to rescind
The uncontroverted evidence of DW1 established that only part of the consideration of Kshs.2,900,000 was paid, with Kshs.1,050,000 later refunded. The plaintiffs did not complete payment within the stipulated 90 days despite notice. The court held the defendants proved their case on a balance of probabilities, warranting rescission, eviction and release of the title documents held in escrow by the vendors' advocates.
Legal principles established
#- Where no Land Control Board consent is obtained for a controlled land transaction, the transaction is null and void under sections 6 and 8 of the Land Control Act
- A vendor who rescinds a breached sale agreement and refunds the consideration may recover possession from the defaulting purchaser
Court orders
#- 1.A declaration that the plaintiff is a trespasser on land parcel Ngeria/Chepyakwai/Block 2 (Kaplelach)/125
- 2.An order of eviction of the plaintiffs, their agents, servants and/or employees from the suit land, subject to the defendants issuing a 45 days' notice
- 3.A declaration that the agreement dated 23rd May, 2015 stands rescinded
- 4.An order directing M/s R. M. Wafula & Company Advocates to release the title documents in their possession to the defendant
- 5.The plaintiffs' claim having already been dismissed with costs, the counterclaim is allowed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land transactions (counterclaim arising from an agreement for sale of land); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilbert Kipsang Choge & another v Cleophas Kirwa Melly & another [2018] KEELC 260 (KLR)", Case Analysis (2018). ELC Case at Eldoret (number not stated in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/260/eng@2018-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.