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ELCDismissedELCA No 4 of 2018 (formerly Nyahururu ELCA 13 of 2017)· [2018] KEELC 724 (KLR)

John Mutahi Gitonga v Geoffrey Thuku & 2 others [2018] KEELC 724 (KLR)

Environment and Land Court
22 November 2018
MOM.C. Oundo
7,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a land sale is not void just because Land Control Board consent was never obtained — only a refused application voids it.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyahururu against the judgment of Principal Magistrate D. Mikoyan delivered on 27th January 2016 in PMCC No. 66 of 2012. The Appellant, registered proprietor of LR No. Laikipia Mutara Block 2/1235 (Uruku), challenged the trial court's finding that the 16th October 2009 sale agreement with the Respondents (a self-help water project) remained binding, arguing that the transaction was void for want of Land Control Board consent, which he alleged had been refused because the excised portion lacked road access. He sought setting aside of the judgment and entry of judgment as per his plaint, which had sought nullification of the agreement and refund. The Respondents countered that the Appellant never applied for consent, had received substantial payments totalling over Ksh 156,000, and that their water intake and five water kiosks constructed on the land in 2001-2002 with the prior allottee's permission constituted an overriding interest under Section 30 of the repealed Registered Land Act. M.C. Oundo J, reconsidering the evidence as first appellate court, held that both agreements satisfied Section 3(3) of the Law of Contract Act; that the 2006 agreement was vitiated by the 2009 agreement; that a controlled transaction does not become void merely for failure to apply for consent - only refusal voids it under Section 9(2) of the Land Control Act - and since the Appellant never applied, the transaction was not void. Drawing on Willy Kimutai Kitilit v Michael Kibet, the court found the payment of the deposit created an enforceable constructive trust and extended time by six months for the consent application. It further upheld the Respondents' overriding interest and dismissed the appeal with costs to the Respondents.

Key legal issues

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01

Validity of the sale agreements

Holding

Both the 2006 and 2009 agreements complied with Section 3(3) of the Law of Contract Act, but the 2006 agreement was vitiated by the subsequent 2009 agreement

Reasoning

The court found both agreements were in writing, signed by all parties and attested as required by Section 3(3) of the Law of Contract Act. However, the parties entered a second agreement on 16th October 2009 without mention of the first; like the trial magistrate, the court held the first contract was automatically vitiated by the subsequent contract, and confined itself to the 2009 agreement.

p. 5
02

Whether Land Control Board consent was essential and the effect of its absence

Holding

The transaction was not void because the Appellant never applied for consent; failure to apply did not void it, only a refusal does, and equity required the court to extend time for applying for consent

Reasoning

Relying on Section 9(2) of the Land Control Act and the Court of Appeal decision in Willy Kimutai Kitilit v Michael Kibet, the court held that constructive trust and proprietary estoppel apply to controlled transactions void for lack of consent. Since the Appellant, having received the deposit, never applied for consent, his failure constituted sufficient reason to extend time for the application.

p. 8
03

Whether the Respondents held an overriding interest over the suit land

Holding

Yes - the Respondents' possession, occupation and construction of a water intake and five water kiosks with the permission of the prior allottee created an easement/overriding interest binding on the Appellant's title

Reasoning

The water intake and kiosks were constructed in 2001-2002 when the Government of Kenya was registered proprietor and Fredrick Ndiangui Njuguna the allottee, who allowed entry. By the time the Appellant was registered in 2004, the Respondents were in possession and actual occupation, engaging Section 30(g) of the Registered Land Act and the doctrine of overriding interests as restated by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari.

p. 8

Legal principles established

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  • A controlled transaction is not void for mere failure to secure consent; it becomes void where an application for consent is made and refused
  • Payment of a deposit under a sale agreement coupled with possession creates an enforceable constructive trust
  • An appellate court will not interfere with findings of fact by the trial court unless based on no evidence, misapprehension of evidence, or wrong principle

Court orders

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  1. 1.Declaration that the Plaintiff's registration as proprietor over Title No Mutara/Mutara Block 2/1235(Uruku) is subject to an overriding interest comprised in the constructed and completed permanent water intake along the Mutara River and five water kiosks
  2. 2.Declaration that the agreement dated 16th October 2009 is valid and the Appellant to comply with it fully
  3. 3.Extension of time to apply for Land Control Board consent by six months from the date of the judgment
  4. 4.Compulsion of the Appellant to execute all necessary documents and take all necessary steps to complete the transaction within 30 days, failing which the Deputy Registrar to execute such documents
  5. 5.Respondents to pay the Appellant Ksh 50,000/= being the balance of purchase price upon issuance of the certificate of title
  6. 6.Respondents awarded the costs of the Appeal

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Control ActSections 6(1), 6(2), 6(3)(b), 7, 8(1), 9(2), 22, 11, 13
  • Registered Land Act (Cap 300, repealed)Sections 28(b), 30(a), (b) and (g)
  • Land Registration ActTransitional clause
  • Land ActSection 38(2)
  • Constitution of KenyaArticles 10(1)(b), 10(2)(b), 159(2)(e); Sixth Schedule clause 7

Cases cited (13)

  • Willy Kimutai Kitilit vs Michael Kibet
    Civil Appeal No 51 of 2015; [2018] eKLR
  • Pauline Wambui Ngari vs John Kairu & Another
    [1997] eKLR
  • Joseph Mathenge Kamithi
    ELC No 102 of 2014 - Nyeri
  • Makangu vs Mbui
    [2000] LLR 4317 (CAK)
  • Macharia Mwangi Maina & 87 Others vs Davidson Mwangi Kagari
    [2014] eKLR
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Shah -vs- Guilders International Bank Ltd
    [2003] KLR
  • Aiman vs Muchoki
    (1984) KLR 353
  • Joseph Githinji Gathiba v Charles Kingori Gathiba
    [2001] eKLR
  • Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another
    [2018] eKLR
  • Obiero v. Opiyo
  • Esiroyo v. Esiroyo
On appeal from
Principal Magistrate's Court at Nyahururu
PMCC No. 66 of 2012
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Principal Magistrate's Court

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, "John Mutahi Gitonga v Geoffrey Thuku & 2 others [2018] KEELC 724 (KLR)", Case Analysis (2018). ELCA No 4 of 2018 (formerly Nyahururu ELCA 13 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/724/eng@2018-11-22

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