Jamleck Kiura Murathi v Angelius Gichobi Karuri & another [2019] KEELC 3316 (KLR)
The bottom line
#A Kenyan seller who kept buyers' land money for 18 years must still pay interest on the refund, even though the buyers occupied the land.
What this practically means
#Executive summary
#Key legal issues
#Award of interest on refund of purchase price for a void land sale
The trial court properly exercised its discretion under section 26(1) of the Civil Procedure Act in awarding interest from 19th February 1996 until payment in full; the Appellant, who held the money for over 18 years, cannot escape interest merely because the purchasers occupied the land.
Interest awards are discretionary. No misdirection on principle or irrelevant considerations was shown. The equitable discretion recognised in Kitilit permits courts to grant relief upon refund of the purchase price, and a party kept out of money for 18 years is entitled to interest despite receiving possession of the property.
Whether the trial court found the Appellant in default for failure to obtain Land Control Board consent
The trial court made no such finding; it held that no party was in breach because the agreements became void by operation of law, and refund under section 7 of the Land Control Act does not depend on default.
The appellate court reviewed the trial judgment and found no finding of default by the Appellant. The magistrate expressly held that no party was in breach since the agreements became void by virtue of the law governing controlled transactions. Section 7 relief is independent of fault.
Mode of disposal by documents and submissions instead of oral evidence
The Appellant was bound by the consent recorded by his advocate to dispose of the suit on the record and written submissions, and no vitiating factor was alleged.
The advocates for both parties recorded a consent on 20th November 2014 for disposal on documents and submissions. Such a consent binds the parties and the court, and can only be set aside on grounds such as fraud, collusion, duress or mistake, none of which was pleaded by the Appellant.
Legal principles established
#- Recovery of the purchase price under section 7 of the Land Control Act for a void transaction is not dependent upon default of any party to the agreement.
- A consent by advocates on the mode of disposal of a suit binds the parties and cannot be resiled from absent vitiating factors.
- An appellate court should not lightly interfere with the exercise of judicial discretion by a court of first instance.
Court orders
#- 1.The appeal is dismissed with costs to the Respondents
- On appeal from
- Principal Magistrate's Court at Embu
- Embu CMCC No. 8 of 2008
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from magistrates' courts in land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamleck Kiura Murathi v Angelius Gichobi Karuri & another [2019] KEELC 3316 (KLR)", Case Analysis (2019). E.L.C. (Appeal) No. 9 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3316/eng@2019-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.