M’Mucheke M’Mubwika & 3 others v Janet Kaunanku & another [2019] KEELC 4209 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Interpretation of sections 6 and 7 of the Land Control Act (Cap 302) as applied to miraa lease agreements on agricultural land
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
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.
Whether the 1st appellant breached the lease agreements
Yes - the trial magistrate's finding that the 1st appellant frustrated the respondents' leases was upheld
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.
Whether the trial magistrate erred in granting reliefs not specifically prayed for (refund of guarding costs and deduction from court deposit)
No - the general prayer for 'any other damages' covered the costs of guarding the miraa
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.