Peter Ouma Ang’asa v Charles Jabero Ochieng’ [2018] KEELC 1128 (KLR)
The bottom line
#A land buyer's Kshs. 160,000 claim failed because his affidavit wasn't properly signed and the land sale had become void without Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Validity of the verifying affidavit
The verifying affidavit filed with the plaint bore no signature or stamp of the Commissioning Officer, hence the plaint was defective and the suit had to be struck out.
Although the Defendant did not testify, he raised the defective affidavit in his defence, and the court held that being a legal issue it was obliged to make a finding. An uncommissioned document fails to be an affidavit; a plaint supported by an invalid verifying affidavit is defective and cannot sustain the suit.
Effect of failure to obtain Land Control Board consent
The oral agreement of 30th November 2010, reduced to writing on 19th July 2011, became void because no Land Control Board consent was obtained within six months.
Under Sections 6 and 8 of the Land Control Act, a controlled dealing requires consent within six months of the agreement; absent consent the transaction becomes void. Section 7 preserves only a right to refund of monies paid, defeating the Plaintiff's claims for damages and specific performance.
Effect of Defendant's deposit of the refund with the Chief's Office
The Defendant's sworn deposition that he deposited Kshs. 160,000/= with the Chief's Office as refund by 17th March 2014 was unrebutted and rendered further proceedings unnecessary.
Although the Defendant did not testify, the court noted annextures CJO '1' and CJO 'III' to his affidavit of 18th March 2014 confirming the deposit. The Plaintiff did not rebut, controvert or challenge that deposition, so the refund claim was effectively satisfied.
Whether the sale was for the whole parcel or a portion, and whether the Defendant's signature was procured by misrepresentation
The Defendant's averments on these points were unsupported by evidence since he did not attend court to testify.
The Defendant alleged the agreement was for a portion only and that his signature was obtained through misrepresentation because the English-language agreement was not read over to him. Having chosen not to testify, his averments remained without evidential support and could not displace the Plaintiff's testimony.
Legal principles established
#- A verifying affidavit that is not signed or stamped by a Commissioning Officer fails to be an affidavit, rendering the plaint defective.
- Where no Land Control Board consent is obtained within six months, a controlled dealing becomes void and the purchaser is only entitled to a refund of monies paid.
Court orders
#- 1.The Plaintiff's suit against the Defendant is struck out with no order as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (suit over land parcel Kisumu/Kapuonja/300)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Ouma Ang’asa v Charles Jabero Ochieng’ [2018] KEELC 1128 (KLR)", Case Analysis (2018). ELC. No. 249 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1128/eng@2018-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.