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ELCPartially AllowedELC Case No. 150 of 2013· [2018] KEELC 667 (KLR)

Bonface Miheso Ingosi v Nelson Alusiola Moga Shikami [2018] KEELC 667 (KLR)

Environment and Land Court
20 November 2018
1,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the defendant over an agreement of 15th July 2010 for the sale of a half acre portion of KAKAMEGA/SHIKULU/657 at Ksh. 83,000/=. The plaintiff paid the full price by 17th September 2010 and took possession, but the defendant, instead of transferring the land, caused it to be transferred to third parties after succession was completed in January 2013. The plaintiff sought a declaration that the sale was fraudulent, a refund of Ksh. 83,000/=, general damages, interest and costs. The defendant was served but did not attend the hearing; his defence was a mere denial, contending only that any refund should be offset by profits from the plaintiff's occupation. The court held the suit land is agricultural land, so the Land Control Act applies; a sale of agricultural land without land control board consent is void under section 6, and money paid under a void transaction is recoverable as a debt under section 7. Applying Fiat Kenya Ltd v Ali Jama Roble, the court declined specific performance because the contract was incapable of performance, the land having been resold. Following Simiyu v Watambala and Kenneth Kipruto Chebet v Laban Kipkering Murei, the court found the defendant fraudulently resold the land and that the plaintiff proved his case on a balance of probabilities. General damages were refused as unproved. On 20th November 2018 the court declared the sale fraudulent, ordered a refund of Ksh. 83,000/= with interest at court rates, and awarded costs to the plaintiff.

Key legal issues

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01

Voidness of the sale of agricultural land without land control board consent and recovery of purchase price

Holding

The suit land is agricultural land; the Land Control Act applies and the sale was void for want of consent, entitling the plaintiff to recover the purchase price as a debt under section 7

Reasoning

The court held that the suit land is agricultural land within a land control area, so sections 6, 7 and 8 of the Land Control Act apply. Section 6(1) renders a sale of agricultural land void without land control board consent. Section 7 makes money paid under such a void transaction recoverable as a debt. Relying on Simiyu v Watambala, the plaintiff's remedy was damages coupled with recovery of the purchase money. The court found the defendant accepted the purchase price yet fraudulently resold the land to third parties, and the defence was a mere denial.

p. 1
02

Whether specific performance was available and whether the plaintiff proved his case

Holding

The contract was incapable of performance because the land had been resold; specific performance was refused, but the plaintiff proved fraud on a balance of probabilities and obtained a declaration of fraudulency and refund

Reasoning

Citing Fiat Kenya Ltd v Ali Jama Roble, the court held it should not award specific performance where it entertains serious doubt that the contract is capable of performance. The land had been fraudulently transferred to third parties. Following Kenneth Kipruto Chebet v Laban Kipkering Murei, where land has been resold to another buyer the plaintiff is entitled to rescind and recover. The court found the defendant's defence was a mere denial, rejected it, and held the plaintiff had proved his case on a balance of probabilities.

p. 2

Legal principles established

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  • Where a controlled transaction over agricultural land becomes void for want of land control board consent, money paid is recoverable as a debt under section 7 of the Land Control Act
  • A court should not order specific performance of a contract incapable of performance

Court orders

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  1. 1.A declaration that the sale by the defendant of half (1/2) acre portion of title No. KAKAMEGA/SHIKULU/657 was fraudulent
  2. 2.Refund of Ksh. 83,000/= for want of consideration
  3. 3.Interest on the refund at court rates till payment in full
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Control ActSections 6, 7 and 8
  • Civil Procedure ActSection 27

Cases cited (3)

  • Fiat Kenya Ltd Vs Ali Jama Roble
    (1973) EA 11
  • Simiyu v Watambala
    (1985) KLR 852
  • Kenneth Kipruto Chebet v Laban Kipkering Murei
    [2013] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); suit filed as ELC Case No. 150 of 2013

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, "Bonface Miheso Ingosi v Nelson Alusiola Moga Shikami [2018] KEELC 667 (KLR)", Case Analysis (2018). ELC Case No. 150 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/667/eng@2018-11-20

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