Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedE.L.C. Case No. 59 of 2014 (Consolidated with ELC No. 81 of 2014)· [2018] KEELC 3145 (KLR)

Njiru Kindu v Macaki Macai & another [2018] KEELC 3145 (KLR)

Environment and Land Court of Kenya
5 April 2018
2,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A buyer without Land Control Board consent could only recover the purchase price, not the land or compensation for improvements.

What this practically means

#

Executive summary

#
The plaintiff sued under an undated plaint filed 5th May 2006, claiming he had purchased land parcel Nthawa/Gitiburi/1486 from the 1st Defendant under a sale agreement dated 1st November 1978, but no transfer had been effected because the property was registered in the name of the 2nd Defendant (the 1st Defendant's minor son) and Land Control Board consent was never obtained. He sought a declaration of ownership by adverse possession and transfer of the suit property, alternatively transfer of 4 acres out of parcel No. 1252, alternatively refund of the purchase price, survey and other expenses and compensation for developments, with interest and costs. The defendants pleaded illegality of the agreement and denied the claims. A separate eviction suit by the 2nd Defendant was consolidated with this suit but abandoned after the plaintiff vacated the property. The parties agreed on the facts, leaving only questions of law, but no agreed statement of issues or submissions was filed, so the court framed six issues. It held the sale agreement void for want of LCB consent under section 6 of the Land Control Act, and the minor not a competent contracting party. The adverse possession claim failed because the plaintiff discontinued possession of his own volition. Following Kariuki v Kariuki, the court held that no damages for improvements are recoverable on a void transaction; the only statutory remedy is refund of consideration under section 7. Judgment was entered for the plaintiff for refund of Kshs 20,800 against the 1st Defendant and Kshs 5,000 against the 2nd Defendant, with interest at court rates from the date of filing suit, and one half of the costs of the suit. All other relief was declined.

Key legal issues

#
01

Validity of the sale agreement dated 1st November 1978

Holding

The agreement became null and void for all purposes for want of LCB consent, and the registered owner (then a minor) was not a competent party to it

Reasoning

At the material time the suit property was registered in the name of the 1st Defendant, a minor, who lacked capacity to contract; any contract with a minor would be voidable at his option upon attaining majority, which he declined. Further, LCB consent was never obtained within six months as required under section 6 of the Land Control Act, rendering the transaction void for all purposes.

02

Adverse possession

Holding

The claim failed because the Plaintiff discontinued possession of his own volition after vacating the suit property

Reasoning

The legal requirements, as articulated in Wambugu v Njuguna and Kasuve v Mwaani Investments Ltd, demand exclusive, open and uninterrupted possession for 12 years. Upon the 2nd Defendant's eviction suit, the Plaintiff vacated the property, so possession was neither continuous nor uninterrupted. The eviction suit was abandoned as overtaken by events.

p. 2
03

Compensation for developments and refund

Holding

Only the purchase price of Kshs 20,800 from the 1st Defendant and Kshs 5,000 from the 2nd Defendant, with interest, is recoverable; no compensation for developments or other expenses

Reasoning

Relying on Kariuki v Kariuki, the court held that no damages for improvements are recoverable in respect of a transaction void for want of consent; the statutory remedy is confined to refund of money or consideration paid under section 7 of the Land Control Act. Continued occupation under a void transaction was unlawful under section 22 of the Act.

p. 3

Legal principles established

#
  • Lack of Land Control Board consent renders a controlled transaction void for all purposes under section 6 of the Land Control Act
  • A party to a transaction void for want of LCB consent can only recover money or consideration paid under section 7 of the Act; damages for improvements are not recoverable
  • A claimant must prove exclusive, open, uninterrupted possession for 12 years to acquire title by adverse possession

Court orders

#
  1. 1.Judgment entered for the Plaintiff for refund of Kshs 20,800 against the 1st Defendant and Kshs 5,000 against the 2nd Defendant, with interest at court rates from the date of filing suit until payment in full
  2. 2.The Plaintiff awarded one half (1/2) of the costs of the suit

Authorities

#

Legislation

  • Land Control Actsection 6
  • Land Control Actsection 7
  • Land Control Actsection 22
  • Civil Procedure Act (Cap 21)section 27
  • Limitation of Actions Actnot specified (title by adverse possession acquired thereunder)

Cases cited (12)

  • Kariuki Vs Kariuki
    [1983] KLR 225
  • Wamukota Vs Donati
    [1987] KLR 280
  • Karuri Vs Gitura
    [1981] KLR 247
  • Simiyu Vs Watambamala
    [1985] KLR 852
  • Munyoro Vs Murage
    [1988] KLR 180
  • David Sironga Ole Tukai Vs Francis Arap Muge & 2 Others
    [2014] eKLR
  • Wambugu Vs Njuguna
    [1983] KLR 172
  • Kasuve Vs Mwaani Investments Ltd
  • Wanja Vs Saikwa No. 2
    [1984] KLR 284
  • Cheboo Vs Gimnyigei
    Kisumu Civil Appeal No. 40 of 1978
  • Karuri Vs Gituru and Others
    Nairobi Civil Appeal No. 25 of 1980
  • Mapis Investments (K) Ltd Vs Kenya Railways Corporation
    [2005] 2KLR 410
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the ELC Act; suit commenced by plaint filed 5th May 2006

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njiru Kindu v Macaki Macai & another [2018] KEELC 3145 (KLR)", Case Analysis (2018). E.L.C. Case No. 59 of 2014 (Consolidated with ELC No. 81 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3145/eng@2018-04-05

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