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ELCDismissedE.L.C. (Appeal) No. 9 of 2015· [2019] KEELC 3316 (KLR)

Jamleck Kiura Murathi v Angelius Gichobi Karuri & another [2019] KEELC 3316 (KLR)

Environment and Land Court of Kenya at Embu
23 May 2019
3,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Embu against the judgment of Hon. S.K. Mutai (SRM) of 23rd June 2015 in Embu CMCC No. 8 of 2008. The Respondents, as plaintiffs, had sued the Appellant for specific performance of two sale agreements over 2 acres out of Title No. Kabare/Kiritine/919 for Kshs.330,000/-, or in the alternative a refund with interest. The transaction became void for want of Land Control Board consent under section 7 of the Land Control Act; the trial court declined specific performance and awarded a refund of the purchase price with court-rate interest from 19th February 1996, but refused the 40% contractual penalty. The Appellant raised three grounds: the award of interest despite the Respondents' 18-year occupation; an alleged finding that he was in default for failure to obtain Land Control Board consent; and the trial court's disposal of the suit on documents and submissions without oral evidence. Angima J, applying the first appellate standard in Selle v Associated Motor Boat Co., rejected all three grounds. Interest was a proper exercise of discretion under section 26(1) of the Civil Procedure Act, since the Appellant held the money for over 18 years; the trial court made no finding of default, and section 7 relief does not depend on fault; and the Appellant was bound by the consent of his advocate on the mode of disposal, no vitiating factor having been alleged. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Award of interest on refund of purchase price for a void land sale

Holding

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.

Reasoning

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.

p. 3
02

Whether the trial court found the Appellant in default for failure to obtain Land Control Board consent

Holding

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.

Reasoning

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.

p. 3
03

Mode of disposal by documents and submissions instead of oral evidence

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondents

Authorities

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Legislation

  • Land Control Act (Cap 302)section 7
  • Civil Procedure Act (Cap. 21)section 26(1)

Cases cited (7)

  • Selle & Another Vs Associated Motor Boat Co. Ltd & Others
    [1968] EA. 123
  • Peters Vs Sunday Post Ltd
    [1958] EA 424
  • Watt Vs Thomas
    [1947] A.C 484
  • Kapsiran Clan Vs Kasagur Clan
    [2018] eKLR (ELC Appeal Case No. 8 of 2016)
  • Mbogo & Another Vs Shah
    [1968] EA 93
  • Willy Kimutai Kitilit Vs Michael Kibet
    [2018] eKLR
  • Hiran Vs Kassam
    [1952] 19 EACA 131
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

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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, "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.