Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Environment and Land Court suit at Nakuru)· [2018] KEELC 2237 (KLR)

Caroline Cherono Kirui v Liner Cherono Towett [2018] KEELC 2237 (KLR)

Environment and Land Court
13 July 2018
DOD. O. Ohungo
4,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan land sale is not void just because Land Control Board consent came late - courts can extend time and force the seller to complete.

What this practically means

#

Executive summary

#
This first-instance judgment of the Environment and Land Court at Nakuru concerned a sale agreement dated 20th March 2012 under which the defendant agreed to sell the plaintiff 0.404 hectares to be excised from parcel Njoro/Ngata Block 2/2807 (Kirobon) for Kshs.1.2 million, of which Kshs.1,150,000 was paid as deposit. The plaintiff sought specific performance, extension of time to apply for Land Control Board consent, and an order compelling the defendant to execute consent application forms. The defendant contended the transaction was null and void for want of Land Control Board consent and that the plaintiff was entitled only to a refund, and denied the court's jurisdiction to extend time. The court framed three issues: whether the transaction was void; whether time could be extended; and whether the reliefs sought were available. Following the Court of Appeal's decision in Willy Kimutai Kitilit v Michael Kibet, the court held the transaction was not void since the consent process was still underway, and that the defendant's failure to sign consent application forms - the obligation being hers under clause 3.2(f) of the agreement - constituted sufficient reason to extend time. Rejecting the defendant's claim of a dispute over the identity of the portion sold, the court applied the four corners rule and found no admissible extrinsic evidence could vary the written agreement including its sketch marked 'A'. Judgment was entered for the plaintiff: specific performance was granted, time for Land Control Board consent was extended by six months, the defendant was compelled to execute completion documents within 30 days (in default the Deputy Registrar to execute), the balance of Kshs.50,000 to be paid on issuance of title, and the plaintiff was awarded costs and interest.

Key legal issues

#
01

Whether the sale agreement was null and void for lack of Land Control Board consent

Holding

The transaction is not void because the process of seeking and considering consent was still ongoing, the plaintiff having sought extension of time.

Reasoning

Relying on the Court of Appeal's decision in Willy Kimutai Kitilit v Michael Kibet, the court held that a controlled transaction is not void at inception but only when no application is made or consent is refused. Since the plaintiff sought extension of time and the consent process was still underway, the agreement was not voided for want of consent. The court reasoned that otherwise the power to enlarge time would be pointless.

p. 3
02

Whether the court can and should extend time for seeking Land Control Board consent

Holding

Yes. The Environment and Land Court, having the same status as the High Court, may extend time under the proviso to Section 8(1) of the Land Control Act, and the defendant's failure to sign application forms constituted sufficient reason.

Reasoning

Clause 3.2(f) of the agreement placed the obligation to procure consents on the defendant, who admitted she never signed Land Control Board application forms, leaving the plaintiff helpless. Following Willy Kimutai Kitilit, equity and natural justice applied, and the defendant's non-cooperation amounted to sufficient reason for extension of time.

p. 4
03

Whether specific performance was available

Holding

Yes. There was a valid and enforceable contract, and specific performance would do more justice than a refund of the deposit.

Reasoning

The defendant did not deny signing the agreement or receiving Kshs.1,150,000. The only obstacle to completion was her own failure to sign consent application forms and sub-divide the land. Her claim of a dispute over the identity of the portion sold was rejected because the agreement, including the sketch marked 'A', clearly defined the property, and extrinsic evidence cannot contradict a written contract. The plaintiff, having filed suit to force completion, could not be expected to accept a refund.

p. 5

Legal principles established

#
  • A controlled land transaction is not void at inception; it becomes void only where no application for consent is made or consent is refused and any appeal dismissed, and the court may extend time for applying for consent where there is sufficient reason.
  • Where a vendor has received the deposit and refused to cooperate in obtaining Land Control Board consent, equity and natural justice justify extension of time.
  • The court may extend time for obtaining Land Control Board consent notwithstanding expiry of the six-month period; otherwise the power to enlarge time would be pointless.

Court orders

#
  1. 1.Order of specific performance compelling the defendant to perform her obligations under the Agreement for Sale dated 20th March 2012
  2. 2.Defendant to excise and transfer to the plaintiff a portion measuring 0.404 Hectares in the area marked 'A' in the sketch annexed to the Agreement, from parcel No. Njoro/Ngata Block 2/2807 (Kirobon)
  3. 3.Time within which to apply for Land Control Board consent extended by 6 months from the date of delivery of the judgment
  4. 4.Defendant compelled to execute all necessary documents and take all necessary steps to complete the transaction within 30 days, in default the Deputy Registrar to execute such documents
  5. 5.Upon issuance of title to the plaintiff, the plaintiff to immediately pay the defendant KShs 50,000 balance of the purchase price
  6. 6.Plaintiff awarded costs of the suit and interest thereon

Authorities

#

Legislation

  • Land Control ActSection 6(1)
  • Land Control ActSection 8(1)
  • Land Control ActSection 7
  • Land Control ActSection 9(2)
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(2)
  • Environment and Land Court ActSection 4
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961)Not specified

Cases cited (6)

  • David Kinisu Sifuna –vs- Marriane Eyaase Kisanji & 2 others
    [2015] eKLR
  • Joyce Mukami –vs- Cypriano Kimathi Mwongo
    [2016] eKLR
  • David Sironga Ole Tukai –vs- Francis Arap Muge & 2 others
    Nairobi Civil Appeal No. 76 of 2014
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
  • Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited
    [2017] eKLR
Jurisdiction invoked
Section 4 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Caroline Cherono Kirui v Liner Cherono Towett [2018] KEELC 2237 (KLR)", Case Analysis (2018). Not stated in judgment (Environment and Land Court suit at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2237/eng@2018-07-13

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