Binds Welfare Association v Gregory Timothy Mutuku & 2 others [2018] KEELC 4425 (KLR)
The bottom line
#A Kenyan court voided a land sale because the Land Control Board consent came too late, and refused to force the sale since the buyer hadn't paid.
What this practically means
#Executive summary
#Key legal issues
#Breach of the Sale Agreement
Both parties were in breach: the Plaintiff failed to pay the balance of the purchase price by the completion date of 28th February 2009, and the Defendants failed to sub-divide the land and obtain the Land Control Board consent by that date
The completion date was 28th February 2009, by which the Plaintiff was to pay the balance and the Defendants to sub-divide and obtain consents. The Plaintiff's cheque for the balance was drawn on 10th March 2009 after the completion period lapsed. The Defendants' sub-division approval came only in 2011 and the transfer consent on 15th April 2009. Neither party performed within the stipulated time.
Entitlement to specific performance
Specific performance was refused because the Plaintiff seeking it had not complied with its own essential obligation of paying the purchase price
Relying on Wambugu vs. Njuguna and Thrift Homes Ltd vs. Kays Investment Ltd, the court held that equity does not grant specific performance to a party in default of an essential term. The Plaintiff never paid the balance even after completion notices, and could not demand the Defendants' performance while withholding its own.
Validity of the agreement under the Land Control Act
The Sale Agreement became null and void because the Land Control Board consent to transfer was obtained about one year after signing, outside the statutory six-month period which was never enlarged
Section 8(1) of the Land Control Act requires consent within six months of the agreement. Consent here was applied for on 28th February 2009 and obtained on 15th April 2009, beyond the six months from 30th July 2008, with no court enlargement. Following Bogani Properties and Rose Wakanyi Karanja, the sale of the agricultural land became null and void; the Plaintiff's remedy is a refund of the deposit.
Legal principles established
#- A party can only succeed in a claim for specific performance where he has complied with the terms of the agreement; a vendor is entitled to repudiate the contract for failure of performance
- An agreement for sale of agricultural land becomes null and void if the Land Control Board consent is not obtained within six months of the agreement
- The provisions of the Land Control Act are imperative and equity cannot soften their harshness
Court orders
#- 1.The Plaintiff's Plaint is dismissed without costs
- 2.The Defendants' Counter-claim dated 5th March 2012 is allowed
- 3.A declaration that the Agreement of Sale dated 30th July 2008 was lawfully rescinded by the Defendants
- 4.A declaration that the Sale Agreement of 30th July 2008 is null and void for want of the consent of the Land Control Board within six months
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (Sale Agreement over Mavoko Town Block 3/3454)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Binds Welfare Association v Gregory Timothy Mutuku & 2 others [2018] KEELC 4425 (KLR)", Case Analysis (2018). Machakos ELCC No. ... of 2012 (Plaint dated 17th January 2012; Counter-claim dated 5th March 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4425/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.