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ELCPartially AllowedNot stated in the judgment (plaint dated 16th April 2015; notice of motion dated 31st March 2017)· [2019] KEELC 4608 (KLR)

Helekiah Ong’any Masara & another v Elisha Oguya Ogada Alias Oguya Ogada & another [2019] KEELC 4608 (KLR)

Environment and Land Court
20 February 2019
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land sale suit because Land Control Board consent was never obtained within six months, making the decades-old agreements void and unenforceable.

What this practically means

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Executive summary

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The 1st Defendant, Elisha Oguya Ogada, moved the Environment and Land Court by notice of motion dated 31st March 2017 seeking striking out of the plaintiffs' suit, with the 2nd Defendant, Jane Akinyi, supporting the application. The plaintiffs' claim rested on two land sale agreements dated 12th April 1978 and 5th August 1981 over portions of parcel Kisumu/Wang'aya 1/2467, seeking specific performance or, alternatively, damages for breach. The 1st Defendant denied the agreements and argued the claim was time barred and void for want of Land Control Board Consent. Applying Sections 6 and 8 of the Land Control Act, the court held that since no consent was ever obtained, both agreements became null and void six months after execution; neither party could enforce them. Relying on Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd and other authorities, the court found specific performance and damages both unsustainable as they presuppose a valid contract. The plaintiffs' affidavit claims of over forty years' occupation were unpleaded, no amendment was pending, and the court, citing David Sironga Oletukai, held parties are bound by their pleadings. It also noted Section 22 of the Act criminalises remaining on the land. Allowing the application, the court struck out the plaintiffs' suit dated 16th April 2015 with costs to the Defendants.

Key legal issues

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01

Whether the suit based on the 1978 and 1981 land sale agreements should be struck out

Holding

Yes - the agreements are void for want of Land Control Board Consent, rendering the suit an abuse of process.

Reasoning

Sections 6 and 8 of the Land Control Act require consent for controlled agricultural land transactions within six months. No consent was ever obtained for the two agreements, so they became null and void. Specific performance and damages both presuppose a valid contract. The plaintiffs' assertion of long occupation was unsupported by any pleaded claim, and s.22 of the Act criminalises remaining on such land. The suit is therefore unsustainable and an abuse of court process.

p. 2
02

Whether the plaintiffs could rely on occupation/adverse possession or refund of purchase price not pleaded

Holding

No - the court is bound by the pleadings and cannot grant unpleaded remedies.

Reasoning

The plaintiffs' claim in the plaint was specific performance or damages. Their affidavit averments about over forty years' occupation had no basis in the pleadings, no amendment application was pending, and no prayer for refund or adverse possession was made. Citing David Sironga Oletukai v Francis Arap Muge, the court held parties set the agenda by their pleadings and cannot raise a different case without amendment.

p. 2

Legal principles established

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  • A transaction over controlled agricultural land requiring Land Control Board Consent that is not obtained within six months becomes null and void and unenforceable.
  • Specific performance and damages presuppose a valid and enforceable contract; neither can be granted on a void agreement.
  • A court cannot grant a remedy or determine issues not pleaded by the parties; parties are bound by their pleadings.

Court orders

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  1. 1.The 1st Defendant's notice of motion dated 31st March 2017 and filed on 24th April 2017 is allowed
  2. 2.The Plaintiffs' suit commenced through the plaint dated 16th April 2015 is struck out
  3. 3.Costs of the suit to the Defendants

Authorities

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Legislation

  • Land Control Act (Chapter 302, Laws of Kenya)Sections 6 and 8
  • Land Control Act (Chapter 302, Laws of Kenya)Section 7
  • Land Control Act (Chapter 302, Laws of Kenya)Section 22

Cases cited (8)

  • Kariuki vs Kariuki (1983) KLR 223
    (1983) KLR 223
  • Hirani Ngaithe Githire vs Wanjiku Munge [1979] KLR
    [1979] KLR
  • Gitanga Mwaniki & Another vs Annunciata Waithira Kibue [2013] eKLR
    [2013] eKLR
  • Charles Mwirigi Miriti vs Thananga Tea Growers Sacco Ltd & Another [2014] eKLR
    [2014] eKLR
  • Fiat Kenya Ltd vs Ali Juma Roble [1973] E.A 11
    [1973] E.A 11
  • Phillip Mwenze Mumo vs Mwirithi Kakula Ivula [2004] eKLR
    [2004] eKLR
  • David Sironga Oletukai vs Francis Arap Muge & 2 Others [2014] eKLR
    [2014] eKLR
  • Joseph Kamau Kiguoya vs Rose Wambui Muthike [2016] eKLR
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the striking-out application; specific provision not stated in the judgment

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, "Helekiah Ong’any Masara & another v Elisha Oguya Ogada Alias Oguya Ogada & another [2019] KEELC 4608 (KLR)", Case Analysis (2019). Not stated in the judgment (plaint dated 16th April 2015; notice of motion dated 31st March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4608/eng@2019-02-20

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