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ELCDismissedELC Appeal (Meru) - arising from Maua SPMC Civil Suit No. 43 of 2011· [2019] KEELC 4209 (KLR)

M’Mucheke M’Mubwika & 3 others v Janet Kaunanku & another [2019] KEELC 4209 (KLR)

Environment and Land Court
1 March 2019
3,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who took miraa lease payments then claimed the deal was illegal for lacking consent could not escape the bargain—the court made him pay.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court (Mwangi Njoroge J, delivered at Meru on 1 March 2019) against the judgment of the Senior Principal Magistrate's Court at Maua in Civil Suit No. 43 of 2011 delivered on 10 July 2015. The respondents had leased miraa plucking periods on the 1st appellant's agricultural land under four written agreements between 2008 and 2009 and sued for injunction and liquidated damages after an eviction notice. The appellants pleaded that the leases were void for want of land control board consent under sections 6 and 7 of the Land Control Act (Cap 302) and counterclaimed for miraa allegedly plucked by the respondents. The ELC distilled five grounds of appeal and rejected each. It upheld the magistrate's interpretation that the miraa leases were controlled transactions but endorsed the equitable approach preventing the 1st appellant, who had received lease monies, from pleading illegality; following Gatere Njamunyu v Joseck Njue, it held the agreement presumptively voidable rather than void ab initio since voidness attaches only upon refusal of consent, not mere lapse of the six-month period. The finding of breach was affirmed, being supported by the 1st appellant's own trial statements, and the magistrate was held entitled to award costs of guarding the miraa under the general prayer for 'any other damages'. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Interpretation of sections 6 and 7 of the Land Control Act (Cap 302) as applied to miraa lease agreements on agricultural land

Holding

The leases related to the land and required land control board consent; but the magistrate's equitable approach in not permitting the 1st appellant to escape a bargain whose proceeds he had received was sound, and the agreement is presumed voidable rather than void ab initio

Reasoning

The court agreed with the trial magistrate that the miraa trees are attached to the land, so the leases were controlled transactions. Drawing on the Court of Appeal's recent jurisprudence favouring innocent parties, it held that lapse of the six-month period for obtaining consent does not automatically void a transaction; the proviso to section 8(1) allows extension of time, so the agreement was voidable and breach could be founded upon it. Equity would not allow the 1st appellant to profit from his own illegality after receiving lease monies.

p. 4
02

Whether the 1st appellant breached the lease agreements

Holding

Yes - the trial magistrate's finding that the 1st appellant frustrated the respondents' leases was upheld

Reasoning

The trial court, credited with observing witness demeanour, found the plucking records of both PW6 and DW4 untrustworthy and concluded the plaintiffs had not exhausted their plucking periods. The 1st appellant's own statements at trial showed he evicted the respondents for a better offer. The ELC held that although the exact moment of breach could not be fixed, it fell within the period when the appellant threw out the respondents and dealt with the 2nd to 4th appellants.

p. 4
03

Whether the trial magistrate erred in granting reliefs not specifically prayed for (refund of guarding costs and deduction from court deposit)

Holding

No - the general prayer for 'any other damages' covered the costs of guarding the miraa

Reasoning

The decree ordered refund of guarding costs, deduction of damages and guarding costs from the amount deposited in court, and payment of the balance to the 1st defendant. Although these were not specifically pleaded, the plaint sought 'any other damages that the honourable court may deem fit and just to grant', and the costs were occasioned by the 1st appellant's conduct. The ground of appeal did not challenge the quantification of the guarding costs.

p. 5

Legal principles established

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  • A party who receives the proceeds of a land transaction and then pleads its illegality for want of statutory consent to unjustly enrich himself may be denied that defence
  • Failure to apply for land control board consent within the six-month period under section 8(1) does not of itself render a controlled dealing void; it is refusal of consent that renders it void under section 9(2), and courts may in appropriate cases treat such transactions as voidable in favour of innocent parties

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 Actsections 6, 7, 8(1), 9(2), 11, 13

Cases cited (5)

  • Willy Kimutai Kitilit vs Michael Kibet
    (2018) eKLR
  • Joseph Mathenge Kamutu vs Joseph Maina
    (2015) eKLR
  • Macharia Mwangi & 87 Others vs Davidson Kagiri
    (2014) eKLR
  • Joseph Mathenge Kamutu Versus Joseph Wainaina Karanja Nancy Wanjiru Wainaina
    Nyeri ELC No. 102 of 2014
  • Gatere Njamunyu vs. Joseck Njue
    Nairobi Civil Appeal No. 20 of 1992
On appeal from
Senior Principal Magistrate's Court, Maua
Civil Suit No. 43 of 2011
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court

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, "M’Mucheke M’Mubwika & 3 others v Janet Kaunanku & another [2019] KEELC 4209 (KLR)", Case Analysis (2019). ELC Appeal (Meru) - arising from Maua SPMC Civil Suit No. 43 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4209/eng@2019-03-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.