Bonface Miheso Ingosi v Nelson Alusiola Moga Shikami [2018] KEELC 667 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Voidness of the sale of agricultural land without land control board consent and recovery of purchase price
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
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.
Whether specific performance was available and whether the plaintiff proved his case
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
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.
Legal principles established
#- 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
#- 1.A declaration that the sale by the defendant of half (1/2) acre portion of title No. KAKAMEGA/SHIKULU/657 was fraudulent
- 2.Refund of Ksh. 83,000/= for want of consideration
- 3.Interest on the refund at court rates till payment in full
- 4.Costs of the suit to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.