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ELCPartially AllowedE&L Case — Kitale (plaint dated 21/2/2014)· [2018] KEELC 1204 (KLR)

Ebei Korodi Cloprita v Margaret Naliaka & 2 others [2018] KEELC 1204 (KLR)

Environment and Land Court
11 October 2018
2,626 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that land buyers who paid and occupied land cannot lose it just because Land Control Board consent was never obtained.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Sudo Korodi Ngichwae (transmitted to him via Kitale High Court Succession Cause No. 264 of 2011), sued for a declaration of entitlement to exclusive possession of Maridadi Settlement Scheme Plot No. 113, alleging that the defendants were trespassers on 3 acres, and sought vacant possession, general damages for trespass and costs. The 1st defendant, administrator of the estate of Geoffrey Wekesa Waminila, denied trespass and counterclaimed, producing two sale agreements dated 30/4/1991 (2 acres for Kshs.43,000/-) and 21/11/1996 (1 acre for Kshs.21,500/-) between her late husband and the deceased vendor, under which her husband paid nearly the full price and took possession from 1991. The 2nd and 3rd defendants never entered appearance. The plaintiff pleaded, in the alternative, that the agreements were null and void for want of Land Control Board consent. The court framed three issues: validity of the agreements, effect of want of consent, and the orders to issue. It found the agreements genuine and valid, noting the plaintiff admitted the 1st defendant's long occupation and adduced no evidence of forgery, duress or undue influence. Relying on recent Court of Appeal jurisprudence, notably Willy Kimutai Kitilit v Michael Kibet, the court held that want of Land Control Board consent was not fatal where the vendor, who bore the obligation to apply for consent, received the price and put the purchaser in possession. The plaintiff's suit was effectively dismissed and the counterclaim allowed: the agreements were declared valid and the plaintiff ordered to execute subdivision and transfer documents for 3 acres to the 1st defendant, with the Deputy Registrar to execute in default. The plaintiff was ordered to bear the costs of both the suit and the counterclaim. Judgment delivered at Kitale on 11 October 2018 by Mwangi Njoroge, Judge.

Key legal issues

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01

Validity of the 1991 and 1996 sale agreements

Holding

The agreements were genuine and valid; the 1st defendant entered possession on the basis thereof

Reasoning

The 1st defendant produced two sale agreements, the first drawn and witnessed by an advocate, and had occupied the land since 1991 during the vendor's lifetime. The plaintiff admitted the 1st defendant was in occupation of 3 acres when his brother died. No evidence was adduced that the agreements were forged or procured by duress or undue influence, nor any explanation for the long occupation absent a transaction.

p. 3
02

Effect of absence of Land Control Board consent under Section 8 of the Land Control Act

Holding

The agreements are not null and void for want of Land Control Board consent and are enforceable against the vendor's estate

Reasoning

Section 8 requires consent within 6 months, but the obligation to apply for consent lay on the vendor, who died before doing so. Following recent Court of Appeal decisions, where the purchaser has paid and been put in possession, the defence of nullity fails and the vendor is deemed a constructive trustee; the plaintiff, as administrator stepping into the vendor's shoes, must execute the transfer documents.

p. 4

Legal principles established

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  • Want of Land Control Board consent is not fatal to a controlled transaction where the vendor has received the purchase price and put the purchaser in possession; equity treats such a vendor as holding the land on a constructive trust

Court orders

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  1. 1.A declaration that both sale agreements dated 30/4/1991 and 21/11/1996 are valid
  2. 2.The plaintiff Ebei Korodi Cloprita shall execute all documents necessary to effect the subdivision of Plot No. 113 Maridadi Settlement Scheme so that 3 acres including the area occupied by the 1st defendant is excised therefrom
  3. 3.The plaintiff Ebei Korodi Cloprita shall execute all documents necessary to effect the transfer of the 3 acres so excised to the 1st defendant
  4. 4.In default, the Deputy Registrar of the Court shall execute the necessary subdivision and transfer documents
  5. 5.The plaintiff shall bear the costs of the main suit and the counterclaim

Authorities

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Legislation

  • Land Control ActSection 8

Cases cited (3)

  • Willy Kimutai Kitilit –vs- Michael Kibet
    (2018) eKLR
  • Joseph Mathenge Kamutu –vs- Joseph Maina
    (2015) eKLR
  • Macharia Mwangi & 87 Others –vs- Davidson Kagiri
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over land (trespass, validity of sale agreements and counterclaim); no specific constitutional/statutory provision invoked

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, "Ebei Korodi Cloprita v Margaret Naliaka & 2 others [2018] KEELC 1204 (KLR)", Case Analysis (2018). E&L Case — Kitale (plaint dated 21/2/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1204/eng@2018-10-11

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