Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC. No. 249 of 2013· [2018] KEELC 1128 (KLR)

Peter Ouma Ang’asa v Charles Jabero Ochieng’ [2018] KEELC 1128 (KLR)

Environment and Land Court
24 October 2018
982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
The Plaintiff sued the Defendant seeking a refund of Kshs. 160,000/= paid under a sale agreement over land parcel Kisumu/Kapuonja/300, damages of 30% of the Kshs. 200,000/= purchase price for breach, or alternatively an order for specific performance, plus costs and interest. The Defendant denied the claim, asserting the agreement covered only a portion of the parcel, that transfer was to follow final payment, and that his signature was obtained through misrepresentation as the English-language agreement was not read to him; he also attacked the verifying affidavit. At the hearing the Plaintiff testified that the sale began as an oral agreement on 30th November 2010, later reduced to writing on 19th July 2011, that no Land Control Board consent was ever obtained, and that his official search certificate was not availed to court. The court framed four issues: the date of the agreement, whether it covered the whole parcel, whether it contained a default clause, and costs. It found the parties reduced the oral agreement to writing and that the Plaintiff paid a total of Kshs. 160,000/=. Because no Land Control Board consent was obtained within six months, the agreement became void under Sections 6 and 8 of the Land Control Act, leaving the Plaintiff entitled only to a refund. The court noted the Defendant's unrebutted deposition that he had deposited the full Kshs. 160,000/= with the Chief's Office as refund by 17th March 2014, mooting further proceedings. The court further held that the verifying affidavit bore no commissioning officer's signature or stamp, was therefore not an affidavit, and rendered the plaint defective. Accordingly, the Plaintiff's suit was struck out with no order as to costs.

Key legal issues

#
01

Validity of the verifying affidavit

Holding

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.

Reasoning

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.

p. 2
02

Effect of failure to obtain Land Control Board consent

Holding

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.

Reasoning

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.

p. 2
03

Effect of Defendant's deposit of the refund with the Chief's Office

Holding

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.

Reasoning

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.

p. 2
04

Whether the sale was for the whole parcel or a portion, and whether the Defendant's signature was procured by misrepresentation

Holding

The Defendant's averments on these points were unsupported by evidence since he did not attend court to testify.

Reasoning

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.

p. 2

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. 1.The Plaintiff's suit against the Defendant is struck out with no order as to costs

Authorities

#

Legislation

  • Land Control ActSections 6, 7 and 8
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.