Sammy Akifuma & another v Kaposhi Njoroge Nakumania & 3 others [2018] KEELC 3467 (KLR)
The bottom line
#A Kenyan court voided a decades-old land sale because Land Control Board consent was never obtained, but still ordered the buyer's money refunded with interest.
What this practically means
#Executive summary
#Key legal issues
#Validity of the sale agreements
There was a valid contract of sale of land between the Plaintiffs and the 1st Defendant satisfying section 3(3) of the Law of Contract Act, though the acreage purchased was sixty (60) and not one hundred (100) acres.
PW1 and DW1 gave consistent evidence that agreements were entered into and signed by the 1st Defendant with attesting witnesses, satisfying section 3(3) of the Law of Contract Act. The Plaintiffs produced an agreement dated 6th January 1990 and one dated 12th December 1989, while DW1 produced the Sale Agreement dated 17th November 1990 for forty-five acres. The 1st Defendant also admitted in Machakos HCCC No. 299 of 2012 that he sold the land and received part payment including construction of a house. The documents produced supported sixty acres, not one hundred.
Entitlement to specific performance
The claim for specific performance failed because the sale agreement became void for want of Land Control Board consent within six months and the contractual completion date of December 1990 had passed.
Under section 6(1)(a) of the Land Control Act, a sale of agricultural land within a land control area is void without the Board's consent. The Plaintiffs failed to obtain consent even after an extension of thirty days granted in Machakos Misc No. 320 of 2012. Following the cited authority, the agreement became void for all purposes. The completion date of December 1990 was some twenty-eight years past. Specific performance of a void agreement cannot lie.
Refund of purchase price
Despite the contract being void, the Plaintiffs were entitled to a refund of the purchase price for sixty acres at Kshs. 2,000 per acre, amounting to Kshs. 120,000, even though refund was not pleaded.
The court found the Plaintiffs were not estopped from demanding a refund from the 1st Defendant, who failed to adhere to the terms of the sale agreements and subdivided and transferred the suit land to the 2nd and 4th Defendants to defeat their claim. Although refund was not pleaded, the court relied on the Moses Marangu authority where refund was ordered even if not pleaded. The acreage supported by the two agreements produced was sixty acres.
Claim against the 4th Defendant
The 4th Defendant was exonerated as a bona fide purchaser for value without notice who had already acquired title to his parcel.
The court noted that the 4th Defendant had already been exonerated, being a buyer for value without notice who held a title to the parcel he purchased (KAJIADO/KAPUTIEI-CENTRAL/2346). This is consistent with the protection the law affords to bona fide purchasers for value.
Legal principles established
#- A sale, transfer or other disposal of agricultural land within a land control area is void unless the Land Control Board's consent is obtained, and the application for consent must be made within six months of the agreement.
- Where a sale of land contract is void, a purchaser may be awarded a refund of the consideration paid even where refund was not pleaded.
Court orders
#- 1.The 1st, 2nd and 3rd Defendants to refund to the Plaintiffs Kshs. 120,000 inclusive of interest from 1990, within ninety (90) days from the date of the judgment
- 2.The amounts stated above to attract interest from 1990 to date, at court rates
- 3.The costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Environment and Land Court, first-instance civil suit (formerly Machakos HCCC No. 93 of 2014)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Akifuma & another v Kaposhi Njoroge Nakumania & 3 others [2018] KEELC 3467 (KLR)", Case Analysis (2018). ELC Case No. 356 of 2017 (Formerly Machakos HCCC No. 93 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3467/eng@2018-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.