Kemei & another v Kirui (Environment & Land Case 51 of 2016) [2018] KEELC 4910 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Voidness of the sale for want of Land Control Board consent
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.
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.
Availability of damages for breach of a void transaction
No damages were available; the sole remedy was recovery of the purchase price as a debt, and that had been satisfied.
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.
Whether the suit should be struck out
The suit was struck out because the transaction underlying it was void and the claim had been settled by the refund.
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.
Legal principles established
#- 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
#- 1.The suit against the defendant is struck out with costs to the defendant
- Jurisdiction invoked
- Order 2 Rule 25 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.