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ELCAllowedELC Case No. 147 of 2017· [2018] KEELC 4635 (KLR)

Joseph Nzuve Musau v Mbuki Kiala [2018] KEELC 4635 (KLR)

Environment and Land Court
29 January 2018
CMC.G. Mbogo
1,276 words in judgment
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The bottom line

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A Kenyan court ruled that even when a farmland sale is void for lacking Land Control Board consent, the seller must still refund the buyer's money and cover their developments.

What this practically means

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Executive summary

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The plaintiff sued the defendant for breach of a land sale agreement dated 1st October 2010 over one acre of land in Mbukuni village, Upete Adjudication Section. He sought a refund of Kshs.52,000/= being the purchase price, Kshs.411,980/= being the assessed value of crops and developments on the land, plus costs and interest. The suit proceeded as undefended after the defendant, though served, failed to enter appearance or file a defence. The plaintiff testified that he paid the full purchase price, took possession and developed the land, but in 2014 the defendant drove her cows onto the land and insisted on reclaiming it. Efforts at settlement through the chief, village elder and the OCS failed, and the Ministry of Agriculture valued his investments at Kshs.411,980/=. Counsel framed three issues: validity of the sale, its enforceability, and entitlement to remedies. It was common ground that the agreement met Section 3(3) of the Law of Contract Act, but as agricultural land, failure to obtain Land Control Board consent under Section 6(1) of the Land Control Act rendered it void. The court, relying on Steadman v Steadman and Emily Chonge Wanyama v Patrick Mangeni Yusto, held that the defendant was duty bound to refund the consideration and the value of developments. Judgment was entered for the plaintiff in terms of prayers (a), (b) and (c) of the plaint.

Key legal issues

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01

Validity of the sale agreement

Holding

Both parties entered into a binding contract complying with Section 3(3) of the Law of Contract Act

Reasoning

The agreement dated 1st October 2010 was duly executed by both parties and the purchase price of Kshs.52,000/= was paid in full, meeting the statutory criteria for a valid written contract relating to land.

p. 2
02

Enforceability of agreement for lack of Land Control Board consent

Holding

Though the agreement is void for want of consent under Section 6(1) of the Land Control Act, the Defendant is accountable to refund the consideration and the value of developments

Reasoning

Counsel correctly conceded the sale was rendered void by Section 6(1) of the Land Control Act since no consent was obtained. Relying on Steadman v Steadman and Emily Chonge Wanyama, the court held that a vendor who lets the purchaser incur expense on the faith of the agreement cannot then assert unenforceability to escape refunding the consideration and developments.

p. 3

Legal principles established

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  • Where a purchaser has paid the consideration and developed land under an agreement rendered void for lack of Land Control Board consent, the vendor must refund the consideration plus the value of developments

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in terms of prayers (a), (b) and (c) of the plaint: refund of Kshs.52,000/= with interest, Kshs.411,980/= for damaged crops, and costs and interest

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Control Act, Chapter 302 Laws of KenyaSection 6(1)
  • Land Control Act, Chapter 302 Laws of KenyaSection 7

Cases cited (2)

  • Steadman vs Steadman
    [1976] AC 536
  • Emily Chonge Wanyama -vs- Patrick Mangeni Yusto
    [2014] eKLR
Jurisdiction invoked
Original civil suit for breach of contract over land, within the jurisdiction of the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Nzuve Musau v Mbuki Kiala [2018] KEELC 4635 (KLR)", Case Analysis (2018). ELC Case No. 147 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4635/eng@2018-01-29

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