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ELCDismissedNot stated in judgment· [2019] KEELC 1801 (KLR)

Khadija Famau Yusuf v Mohamed Hafidh Mohamed & another [2019] KEELC 1801 (KLR)

High Court of Kenya
27 June 2019
950 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 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

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Executive summary

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The plaintiff sued by plaint dated 24th September 2018, seeking inter alia an extension of time under Section 8(1) of the Land Control Act to apply for consent to a sale agreement dated 28th April 2003 over agricultural land. The 1st defendant filed a preliminary objection contending that the court lacked jurisdiction because the agreement had been declared void in High Court Judicial Review No. 79 of 2011, and that the suit was res judicata and an abuse of process. The plaintiff responded that the suit was primarily for extension of time under Section 8(1), a matter squarely within the High Court's statutory mandate, and that the voidness of the agreement had been a passing finding in an undefended judicial review application. Murithi J in the former suit had quashed Kadhi's court orders and observed that the transaction was void for want of Land Control Board consent. Justice A. Omollo agreed with the 1st defendant that the agreement was null and void for lack of consent, but held that this could not bar a claim for extension of time to obtain the consent. The court reasoned that a suit filed to cure an omission in law cannot be res judicata, and that the question of why consent was not obtained in time was never determined in the former undefended suit. The preliminary objection was dismissed with costs to the plaintiff, with directions that parties proceed to present their case on merits.

Key legal issues

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01

Whether the prior judgment in Judicial Review No. 79 of 2011 rendered the suit res judicata

Holding

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.

Reasoning

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.

p. 2
02

Whether the void agreement ousts the court's jurisdiction

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 15th February 2019 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff
  3. 3.Parties to proceed to present their case on merits

Authorities

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Legislation

  • Land Control Act (Cap 302)Section 8(1)
  • Land Control Act (Cap 302)Section 6
  • Kadhi's Court Act (Cap 11)Section 5
  • Constitution of KenyaArticle 170(5)

Cases cited (3)

  • Owners of Motor Vessel Lilian "S" –versus- Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Caroline Cherono –versus- Liner Cherono
    (2018) eKLR
  • Willy Kimute –versus- Micheal Kibet
    (2018) eKLR
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

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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, "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.