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ELCPartially AllowedELC No. 44 of 2016· [2019] KEELC 5064 (KLR)

Ignatius Okemer Iteba v Golfrida Ikabuku Etyang & another [2019] KEELC 5064 (KLR)

Environment and Land Court (High Court of Kenya)
16 July 2019
2,406 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court voided a land sale for missing Land Control Board consent and ordered the buyer refunded an enhanced Kshs.85,000.

What this practically means

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Executive summary

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The Plaintiff sued two Defendants over a half-acre portion of parcel S.TESO/APOKOR/1023, registered in the name of Etototo Obwini, the 1st Defendant's father-in-law. He claimed he bought the portion from the 1st Defendant for Kshs.49,000 under an understanding he would be included as a purchaser in the succession process, took possession, but was ousted and his crops destroyed by the 2nd Defendant in 2015. He sought inclusion in succession, a permanent injunction against the 2nd Defendant, costs and interest. Both Defendants denied the claim, asserting the seller was the 1st Defendant's daughter Anna Amae, that a refund of Kshs.75,000 agreed at the area D.O's office was deposited but the Plaintiff refused to collect, and that the 2nd Defendant bought an acre from Anna Amae for Kshs.180,000. After trial, the court found the sale agreement clearly showed the 1st Defendant as seller and the daughter as witness, and preferred the Plaintiff's evidence that the refund was never deposited as agreed. However, applying Sections 7 and 8(1) of the Land Control Act (Cap 302), the court held the sale null and void for want of Land Control Board consent, with consideration recoverable as a civil debt. The court declined to order the Plaintiff's inclusion in succession or grant an injunction. Finding it unfair to pay a 2015 refund in 2019 at the same figure, it enhanced the refund to Kshs.85,000 under prayer (e), payable within six months, with the Plaintiff's interest in the portion preserved until payment and the 2nd Defendant barred from acquiring ownership meanwhile. Each party was to bear its own costs. The suit succeeded only in part.

Key legal issues

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01

Identity of the seller under the sale agreement

Holding

The 1st Defendant, not her daughter, was the seller; the daughter was merely a witness

Reasoning

The court examined the sale agreement (PEX No.1) and found it clearly showed the 1st Defendant as seller. The defence contention that the daughter sold the land and the 1st Defendant only witnessed was rejected, since the agreement showed the daughter as witness. This established the 1st Defendant's duty to ensure the refund.

p. 3
02

Whether the agreed refund was deposited for collection

Holding

The Plaintiff's account that the refund was never paid was believed over the defence exhibits

Reasoning

The court compared the Plaintiff's exhibits (summons, refund reminder, cancellation letter) with the defence exhibits, which suggested a deposit date later than agreed. Finding the timeline in the defence documents to place the deposit outside the agreed period, the court preferred the Plaintiff's evidence and credited him with honesty.

p. 3
03

Effect of absence of Land Control Board consent

Holding

The sale became null and void for want of consent, making a refund rather than transfer the appropriate remedy

Reasoning

Relying on Sections 7 and 8(1) of the Land Control Act (Cap 302), the court held that consent should have been obtained within six months of the agreement; failing that the transaction is null and void and consideration is recoverable as a civil debt. The Plaintiff was thus not entitled to transfer or injunction, but to a refund.

p. 3
04

Quantum and timing of the refund

Holding

The Plaintiff to be paid Kshs.85,000 rather than the originally agreed Kshs.75,000, given the lapse of about four years

Reasoning

The court found it unfair to pay a refund fixed in 2015 in 2019 without adjustment, and enhanced the refund to Kshs.85,000 in the interests of fairness and justice, invoking the general prayer (e). Payment was to be made within six months, failing which the Plaintiff's interest in the portion survives.

p. 3

Legal principles established

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  • A land transaction in a land control area without Land Control Board consent obtained within six months is null and void, and money paid as consideration becomes recoverable as a civil debt
  • A party cannot resile from a refund obligation it accepted earlier, in order to avoid payment

Court orders

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  1. 1.The Plaintiff to be paid Kshs.85,000 as refund of the purchase money, granted under prayer (e) of the plaint
  2. 2.Payment to be made within 6 months from delivery of the judgment
  3. 3.So long as the Plaintiff is not paid, his interest in the purchased portion remains and the 2nd Defendant should not become owner
  4. 4.Each party to bear its own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Ignatius Okemer Iteba v Golfrida Ikabuku Etyang & another [2019] KEELC 5064 (KLR)", Case Analysis (2019). ELC No. 44 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5064/eng@2019-07-16

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