Khadija Famau Yusuf v Mohamed Hafidh Mohamed & another [2019] KEELC 1801 (KLR)
The bottom line
#Kenya's High Court confirmed you can still ask for more time to get Land Control Board consent even if your land sale agreement was declared void.
What this practically means
#Executive summary
#Key legal issues
#Whether the prior judgment in Judicial Review No. 79 of 2011 rendered the suit res judicata
No; the JR judgment declared the agreement void for want of Land Control Board consent but did not determine the reasons why consent was not obtained in time, so the extension claim is not res judicata.
The court read the JR judgment and found both the Kadhi's court's jurisdiction and the effect of non-availability of Land Control Board consent were determined, but the plaintiff had not applied to set aside that judgment. However, the show-cause question of why consent was not obtained in time was never determined in the undefended JR suit; the present suit is brought precisely to cure that omission.
Whether the void agreement ousts the court's jurisdiction
No. Although the agreement of 28th April 2003 is null and void for want of consent, that does not bar the plaintiff from seeking extension of time under Section 8(1) of the Land Control Act.
Counsel for the plaintiff submitted that the suit primarily seeks extension of time under Section 8(1) of the Land Control Act, which the High Court is mandated to consider. The court agreed with the 1st defendant that the agreement is void, but held that voidness does not preclude an application for extension of the time allowed to apply for consent.
Legal principles established
#- A suit filed to cure an omission in law cannot be held to be res judicata.
- A finding that an agreement is void for want of Land Control Board consent does not bar a claim for extension of time to obtain such consent.
Court orders
#- 1.The preliminary objection dated 15th February 2019 is dismissed
- 2.Costs of the preliminary objection to the plaintiff
- 3.Parties to proceed to present their case on merits
- Jurisdiction invoked
- Original civil jurisdiction of the High Court under Section 8(1) of the Land Control Act (Cap 302) invoked for extension of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khadija Famau Yusuf v Mohamed Hafidh Mohamed & another [2019] KEELC 1801 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1801/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.