Rosemary Wanjiku Mungai v Annunciata Waithira Kibue [2020] KEELC 3456 (KLR)

The defendant produced a letter from the Commissioner of Lands dated 10th June 2010 confirming the property was agricultural land. The plaintiff led no evidence to rebut this. No consent was obtained within the prescribed six months, so under section 6(1) of the Land Control Act the transaction became void and unenforceable. The plaintiff also pleaded no equitable grounds that could justify upholding the agreement notwithstanding absence of consent.

The property was registered in the name of the deceased. The defendant contracted as administratrix under a grant issued on 15th August 2001 but only confirmed on 16th November 2005, after the agreement. Section 55 of the Law of Succession Act was violated. Following Gitanga Mwaniki v Anunciata Waithira Kibue, the court held the agreement could not bind the other administrators and was unenforceable, including against the defendant personally since she contracted in a representative capacity.

Since the agreement was void on grounds of want of capacity and want of LCB consent, performance by either party would have perpetuated an illegality. Obiter, had the agreement been valid, the plaintiff would have breached clause 3 by failing to pay the additional Kshs.730,000/=, which payment was not conditional on delivery of completion documents.

The deposit was paid to the defendant's advocates as stakeholders and DW1 admitted it was still held by that firm. The defendant bears responsibility to instruct her advocates to release it. No interest was awarded against the defendant; interest only if the money was placed in an interest-earning account, and failing payment by the firm the plaintiff may recover from the defendant without interest.