Njiru Kindu v Macaki Macai & another [2018] KEELC 3145 (KLR)
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
#Key legal issues
#Validity of the sale agreement dated 1st November 1978
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
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.
Adverse possession
The claim failed because the Plaintiff discontinued possession of his own volition after vacating the suit property
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.
Compensation for developments and refund
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
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.
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.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.The Plaintiff awarded one half (1/2) of the costs of the suit
- 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.