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ELCStruck Out· [2018] KEELC 4910 (KLR)

Kemei & another v Kirui (Environment & Land Case 51 of 2016) [2018] KEELC 4910 (KLR)

High Court of Kenya
6 April 2018
1,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a land-buyers' damages suit because their agricultural land purchase lacked Land Control Board consent, making the deal legally void.

What this practically means

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Executive summary

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The defendant moved the court under Order 2 Rule 25 of the Civil Procedure Rules seeking striking out of the plaintiffs' suit. He argued that the sale of a portion of land parcel Kericho/Sorget/Kalyet/1/160, agreed on 3rd June 2005, was void because Land Control Board consent was never obtained within the statutory six months, and that he had already refunded the purchase price following criminal proceedings in Molo CM Criminal Case No. 2102 of 2016, as evidenced by bank transaction slips. The plaintiffs opposed, contending they were put in possession, that the defendant repeatedly promised to transfer the land, that he instead sold it to a third party and violently evicted them, and that the refund was agreed to be without prejudice to their claim for costs and interest to be taxed. The court framed three issues: voidness of the transaction for want of Land Control Board consent, entitlement to damages, and whether the suit should be struck out. Applying section 6(1) of the Land Control Act and the Court of Appeal's decision in David Sironga Ole Tukai, the court held the transaction void for all purposes, so it could not ground a claim for damages. Section 7 permits recovery of the purchase price as a debt, but section 22 criminalises further payments in furtherance of a void transaction; the purchase price having been refunded, the only remedy was exhausted. The court allowed the application and struck out the suit with costs to the defendant on 6th April 2018, amended and signed on 16th April 2018.

Key legal issues

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01

Voidness of the sale for want of Land Control Board consent

Holding

The sale of the agricultural land in 2005 became null and void under section 6(1) of the Land Control Act as no consent was obtained within six months.

Reasoning

It was common ground that the defendant sold the land to the plaintiffs by agreement dated 3rd June 2005, put them in possession, but never obtained Land Control Board consent within the statutory period. Applying section 6(1) and the Court of Appeal's guidance in David Sironga Ole Tukai, the transaction was void for all purposes and equity could not save it.

p. 2
02

Availability of damages for breach of a void transaction

Holding

No damages were available; the sole remedy was recovery of the purchase price as a debt, and that had been satisfied.

Reasoning

Section 7 permits recovery of money paid under a void controlled transaction as a debt, but section 22 criminalises payments or possession in furtherance of the avoided transaction. Since the defendant had refunded the purchase price, any further award of damages would offend section 22.

p. 3
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Whether the suit should be struck out

Holding

The suit was struck out because the transaction underlying it was void and the claim had been settled by the refund.

Reasoning

Given that the agreement was void ab initio under the Land Control Act and the purchase price had already been refunded pursuant to the arrangement in Molo CM Criminal Case No. 2102 of 2016, the plaintiffs had no arguable cause of action and the application under Order 2 Rule 25 succeeded.

p. 3

Legal principles established

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  • A controlled dealing with agricultural land without Land Control Board consent within the prescribed six months is void for all purposes and cannot support a claim in contract.
  • Where money was paid under a void controlled transaction, the only remedy is recovery as a debt under section 7 of the Land Control Act.

Court orders

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  1. 1.The suit against the defendant is struck out with costs to the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 25
  • Land Control Actsection 6(1)
  • Land Control Actsection 7
  • Land Control Actsection 22
  • Development and Use of Land (Planning) Regulations, 1961

Cases cited (5)

  • David Sironga Ole Tukai V Francis Arap Muge and 2 Others
    (2014) eKLR
  • Macharia Mwangi Maina & 87 Others V Davidson Mwangi
    CA No 26 & 27 of 2011 (Nyeri)
  • Karuri V Gitura
  • Simiyu V Watambamala
    (1985) KLR 852
  • Wamukota V Donati
    (1987) KLR 280
Jurisdiction invoked
Order 2 Rule 25 of the Civil Procedure Rules

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, "Kemei & another v Kirui (Environment & Land Case 51 of 2016) [2018] KEELC 4910 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4910/eng@2018-04-06

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