Julius Njue Mukangu v Augustino Kinyua Njiru & another [2019] KEELC 208 (KLR)

The court found that the Appellant defaulted in filing the record of appeal within the stipulated time or at all. The certificate of delay did not excuse the default: certified proceedings were ready as far back as 28 December 2018 but were only collected on 30 September 2019, and no explanation was given for the further delay after collection. The court held the Appellant had not been diligent in prosecuting the appeal.

Although the sale agreement was not attested as required by section 3(3), the cause of action pleaded was recovery of the purchase price after total failure of consideration following the transaction falling through for lack of Land Control Board consent. That is a different cause of action from enforcement of the agreement, so the formalities bar did not apply.

It was common ground that the agreement became void for want of Land Control Board consent. However, the Court of Appeal in Ole Tukai recognized the purchaser's right in a void transaction to recover the purchase price as a debt, a right specifically provided for in section 7 of the Land Control Act. The suit was for a refund, not specific performance, and was thus permitted by law.

Relying on Mary Wambui Kabugu v Kenya Bus Services and the Oruta decision, the court held that a defendant who learns of the extension order upon being served cannot apply to set it aside before trial; the challenge must be at trial on facts or arguments where facts are not in dispute. A preliminary objection to such leave would be contrary to the policy and intention of the Limitation of Actions Act.