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ELCDismissedNot stated in judgment

Ndovu Estates Limited v Ntutu (Environment & Land Case 105 of 2017) [2023] KEELC 160 (KLR)

Environment and Land Court
24 January 2023
5,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land lease claim because the parties never obtained Land Control Board consent, leaving them to recover only admitted payments.

What this practically means

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Executive summary

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The plaintiff, a commercial farmer, sued the defendant over land parcel Cis-Mara/Ngorengore/46 (258 acres), alleging a lease agreement covering 2016 and 2017, advance payments of Kshs 138,000/- for the 2017 season, and breach by the defendant who allegedly leased the land to a third party (Western Engineering East Africa Limited). The plaintiff sought a permanent injunction, specific performance of the 2017 lease, reimbursement of Kshs 60,000/- in document examination fees, and alternatively general damages of about Kshs 4,000,000/-. The defendant denied executing a 2017 lease, contended the 2016 lease had terminated, admitted only a Kshs 50,000/- loan which he tried to refund, and challenged the plaintiff's forensic evidence. Both parties produced contradictory document examiner reports; the court, following Amosam Builders, declined to rely on either report and instead assessed the documentary evidence, finding that a lease relationship existed from 2013, reduced to writing in an agreement dated January 2, 2014 covering up to December 31, 2017. However, the land was agricultural and no Land Control Board consent was obtained, rendering the transaction void under section 6 of the Land Control Act. Specific performance and other equitable relief were therefore unavailable. The suit was dismissed, but the court ordered the defendant to repay the admitted Kshs 50,000/-, with each party bearing its own costs. Judgment delivered by Hon. Mbogo C.G. on January 24, 2023 via email.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a valid lease agreement for the year 2017.
  2. 2.Whether the plaintiff is entitled to the prayers as sought in the amended plaint.

Key legal issues

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01

Whether there was a valid lease agreement for the year 2017

Holding

Although a lease relationship existed between the parties and was evidenced in writing, the lease was null and void for want of Land Control Board consent as required under section 6 of the Land Control Act, and therefore unenforceable.

Reasoning

The court found an agreement existed between the parties, shown by admitted payment vouchers and the lease dated January 2, 2014 drawn by Muigai Kemei & Associates Advocates. However, the subject land was agricultural and neither party sought Land Control Board consent. Citing section 6 of the Land Control Act and Gatere Njamunyu vs Joseck Njue, the court held the transaction void for all purposes and specific performance unavailable. The two conflicting forensic reports were set aside, the court relying instead on the documentary and oral evidence.

p. 9
02

Whether the plaintiff is entitled to the prayers sought in the amended plaint

Holding

The suit was dismissed; only the admitted Kshs 50,000/- owing to the plaintiff was ordered refunded. The Kshs 88,000/- overpayment claim failed for want of proof, and specific performance and damages were refused.

Reasoning

Since the lease was nullified by operation of law, equitable remedies could not issue. The defendant admitted owing Kshs 50,000/- (which he characterised as a loan) and the court ordered its repayment. The claimed Kshs 88,000/- overpayment was unsupported by evidence as to its computation, so no conclusion could be reached on it, and the claim for damages for breach of a void lease necessarily failed.

p. 9
03

Weight to be attached to conflicting forensic document examiner reports

Holding

Where two expert reports conflict, the court is not bound by either and may reject both, deciding on the credibility of witnesses and the totality of the evidence.

Reasoning

Both parties produced contradictory expert reports (PW2 for the plaintiff, DW1 for the defendant) on the signature on the 2017 lease. Following Amosam Builders Developers Ltd vs Betty Ngendo Gachie, the court held expert opinion evidence is not binding; it considered the reports alongside the vouchers, admissions and lease documents and formed its own view, ultimately resting its decision on the lack of LCB consent rather than on either report.

p. 7

Legal principles established

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  • Expert evidence is opinion evidence, not binding on the court; where experts conflict the court must consider all the evidence and form its own opinion.
  • A lease of agricultural land within a land control area is void for all purposes unless the Land Control Board consents; specific performance cannot be granted over such a void transaction, only recovery of consideration paid.

Court orders

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  1. 1.The amended plaint dated October 30, 2017 is dismissed.
  2. 2.The defendant to pay the plaintiff Kshs 50,000/- which is owing to the plaintiff.
  3. 3.Each party to bear its own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly stated in the judgment)

Relief refused

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Permanent injunction restraining interference with land parcel Cis-Mara/Ngorengore/46

The lease was null and void for lack of Land Control Board consent; the plaintiff's claim must fail.

p. 9

Specific performance of the 2017 lease agreement

Specific performance is a discretionary equitable remedy unavailable on a contract nullified by operation of law.

p. 9

Refund of Kshs 60,000/- paid to the document examiner

Claim fell with the dismissal of the suit; not granted in the final orders.

General damages of approximately Kshs 4,000,000 for breach of lease

No enforceable lease existed; the Kshs 88,000/- overpayment figure was not demonstrated.

p. 9

Costs

Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the instant case, I will not rely on any of the reports but on the available evidence.
p. 7Conflicting expert evidence
a lease of agricultural land is one of the transactions that require consent of the LCB and if no consent is given, then the transaction will be rendered void.
p. 9Land Control Act consent
I am unable to order specific performance on a contract that has been nullified by operation of law.
p. 9Specific performance of void contract
As such the amended plaint dated October 30, 2017 is hereby dismissed. The defendant to pay the plaintifi kshs 50,000/- which is owing to the plaintifi. Each party to bear its own costs. It is so ordered.
p. 9Final orders/disposition

Issues in the judgment

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minor

The judgment contains an internal contradiction between the finding on the lease and the dismissal of the claim.

minor

Document examiner's report date inconsistency: the court refers to the defendant's report as dated September 7, 2016 while DW1 testified it was prepared September 9, 2016.

minor

Case number and station are not stated in the judgment text provided.

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, "Ndovu Estates Limited v Ntutu (Environment & Land Case 105 of 2017) [2023] KEELC 160 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/160/eng@2023-01-24

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