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ELCAllowedNot stated in the judgment· [2020] KEELC 3855 (KLR)

Joseph Mathenge Kamutu v Joseph Wainaina Karanja & another [2020] KEELC 3855 (KLR)

Environment and Land Court
21 January 2020
MOM.C. Oundo
1,565 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 forced land sellers to sign Land Control Board consent papers after they refused, warning they must obey court orders.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyahururu (M.C. Oundo, J) on a notice of motion amended on 9th July 2019 by the Plaintiff/Applicant, a purchaser under an Agreement for Sale dated 16th August 2008 over LR Nyandarua/Mbuyu/55 and Nyandarua/Mbuyu 56. The application followed the court's ruling of 5th February 2019 in which time to apply for the Land Control Board consent had been extended by six months, and it sought orders compelling the Defendants/Respondents (vendors) to execute the application for Land Control Board consent and attend the Board, with the Deputy Registrar to execute in default. The Applicant submitted he had served the consent application on the Respondents' advocate for execution but they refused, and relied on Jerusha Wangari Mwangi vs Beatrice Muthoni Kaanja & 2 Others [2018] eKLR. The Respondents opposed, contending the contract had become void for the Applicant's breach in failing to pay the purchase price balance by the completion date, invoking Section 8(1) of the Land Control Act, Article 50(1) of the Constitution, and the maxim that courts cannot rewrite contracts for parties. The court framed one issue: whether it could compel the Respondents to execute the consent application, with execution by the Deputy Registrar in default. Noting that the February 2019 ruling had found a valid contract under Section 3(3) of the Law of Contract Act, under which the Respondents were to procure the Land Control Board consent before the balance was paid, and that there was no evidence the Respondents had applied for consent, the court held that orders made in the presence of both parties must be obeyed without conditions. Allowing the application, the court extended time for obtaining consent by a further three months, ordered the Respondents to execute the consent application and attend the Board within 30 days, directed that in default the Deputy Registrar execute on their behalf, and awarded the costs of the application to the Applicant.

Key legal issues

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Whether the court can compel parties to execute an application for Land Control Board consent, with execution by the Deputy Registrar in default

Holding

Yes. Following the prior ruling that found a valid contract under which the Respondents were to procure the Land Control Board consent, the court found the application merited and ordered the Respondents to execute the consent application and attend the Board, failing which the Deputy Registrar would execute on their behalf, and further extended time by three months.

Reasoning

The court relied on its ruling of 5th February 2019 in which it had found a valid contract under Section 3(3) of the Law of Contract Act and that the Respondents were obliged to procure the Land Control Board consent before payment of the balance. There was no evidence the Respondents had applied for consent. An order made in the presence of both parties must be obeyed without conditions. The court had earlier extended time by six months, yet the Respondents refused to execute the consent application, so the Applicant's apprehension that they sought to defeat his claim was well founded, justifying specific performance-type orders in default.

p. 2

Legal principles established

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  • Court orders made in the presence of both parties must be obeyed unconditionally absent a stay order.

Court orders

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  1. 1.Time within which to apply for the consent of the Land Control Board in respect of the transaction comprised in the Agreement for Sale dated 16th August 2008 extended by a further period of 3 (three) months from the date of delivery of the ruling
  2. 2.Defendants/Respondents ordered to execute the application for consent of the Land Control Board for sale and transfer of No. LR Nyandarua/Mbuyu/55 and Nyandarua/Mbuyu 56 and to attend the relevant Land Control Board within 30 days of delivery of the ruling
  3. 3.In default, the Deputy Registrar of the court to execute for and on behalf of the Defendants the said application for consent of the Land Control Board for the sale and transfer of the said parcels
  4. 4.Defendants/Respondents to meet the costs of the Application

Authorities

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Legislation

  • Land Control ActSection 8(1)
  • Land Control ActSection 9(2)
  • Law of Contract ActSection 3(3)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (3)

  • Jerusha Wangari Mwangi vs Beatrice Muthoni Kaanja & 2 Others
    [2018] eKLR
  • Republic vs Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • Moses Kamande Nyambura vs. Francis Munyua Ngugi
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land transactions; enforcement of the court's ruling of 5th February 2019 extending time to apply for Land Control Board consent (Land Control Act)

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, "Joseph Mathenge Kamutu v Joseph Wainaina Karanja & another [2020] KEELC 3855 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3855/eng@2020-01-21

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