Raphael Wambura v Francis Okech Ogendo [2019] KEELC 4216 (KLR)
The bottom line
#A Kenyan court ruled it cannot enforce an arbitration clause in a land sale agreement that is void because land control consent was never obtained in time.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitration clause in a land sale agreement deprives the court of jurisdiction where the agreement itself is void for want of land control consent
The preliminary objection fails because the arbitration clause is contained in an agreement that is void and unenforceable under the Land Control Act; the court cannot enforce a clause of a void agreement.
The court found that the consents required under Sections 6 and 8 of the Land Control Act were not obtained within six months of the two sale agreements, rendering them void under Sections 6, 7 and 8. Since only recovery of monies paid is permissible under a void agreement, and the Defendant's objection sought to enforce the arbitration clause of a void agreement, the objection lacked merit and was dismissed with costs.
Whether the second agreement of 27th March 2011 contained an arbitration clause
The second memorandum of agreement over a 28 x 16 metre portion of Kisumu/Nyalenda B/2234 does not contain an arbitration clause.
The court examined the memorandum of agreement dated 27th March 2011 attached to the Plaintiff's list of documents and found it contained no arbitration clause; only the earlier agreement of 30th July 2009 had one. This further undermined the objection that all disputes should go to arbitration.
Legal principles established
#- A court can only adjudicate upon and enforce an existing legal and enforceable agreement; a preliminary objection founded on a clause of a void agreement must fail.
- Land sale agreements requiring land control consent that was not obtained within six months are void and unenforceable, and only consideration paid may be recovered.
Court orders
#- 1.The Defendant's preliminary objection dated 21st September 2017 is rejected and dismissed with costs.
- Jurisdiction invoked
- Jurisdiction of the Environment and Land Court over the suit; preliminary objection on jurisdiction raised under the arbitration clause of the sale agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Wambura v Francis Okech Ogendo [2019] KEELC 4216 (KLR)", Case Analysis (2019). Kisumu/Nyalenda B suit re plaint dated 7th November 2012 (not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4216/eng@2019-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.