Wasike v Khisa & 5 others
The bottom line
#The Bungoma land court ordered six occupants off 5.3 acres because their land sales lacked Land Control Board consent, making the transactions void.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants have any rights over the suit property
The sales to the 2nd to 6th defendants were void for want of Land Control Board consent; the Court of Appeal having set aside the Kitale judgment, the defendants have no rights and parties are restored to status quo ante
The suit land is agricultural land within a land control area. The sale agreements (2005-2009) were not accompanied by Land Control Board consent within six months, and no extension was sought under Section 8(1). Equitable doctrines of constructive trust and proprietary estoppel cannot override the express mandatory provisions of the Land Control Act, as equity follows the law under Section 3(1)(c) of the Judicature Act. The Court of Appeal decision in Civil Appeal 87 of 2004 setting aside the Kitale decree stands unchallenged and binds this court.
Whether an order for eviction should issue against the defendants
Having no rights over the suit property, the defendants are trespassers and must give vacant possession within 90 days, failing which eviction will issue
Trespass is an unauthorized and unjustifiable entry upon land in another's possession, actionable regardless of the extent of incursion. Since the defendants' transactions were void and the Court of Appeal restored ownership to the plaintiff, their continued occupation lacks any legal basis. The court therefore directed vacant possession within 90 days with OCPD security for the bailiff if not complied with.
Whether the plaintiff is entitled to mesne profits
Mesne profits declined because the plaintiff did not prove the basis of the figures claimed
Mesne profits are special damages which must be pleaded and proved. Although the plaintiff pleaded Kshs. 15,000 per year per acre from 2001, she tendered no evidence in support of the figures or how they were arrived at. Following Peter Mwangi Mbuthia v Samow Edin Osman, a claimant must place material before the court demonstrating how the amount claimed was computed; absent that, an award would be unsubstantiated.
Who bears the costs of the suit
Costs follow the event; the successful plaintiff is awarded costs
Under the proviso to Section 27 of the Civil Procedure Act, costs are discretionary but ordinarily follow the event. The court found no good reason to deprive the successful litigant of costs, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd.
Legal principles established
#- Failure to obtain Land Control Board consent within six months renders a transaction over agricultural land void for all purposes, and equity cannot override the express provisions of the Land Control Act
- Occupation of agricultural land pursuant to a transaction lacking Land Control Board consent is a criminal offence and cannot constitute an overriding interest
- A decision of the Court of Appeal not appealed against binds the High Court, which cannot sit in appeal over it
- Mesne profits are special damages that must be both pleaded and proved with material demonstrating how the amount claimed was arrived at
Court orders
#- 1.The Defendants be and is hereby directed to give vacant possession of the 5.3 acres originally part of LR. No. Bungoma/Naitiri/83 to the Plaintiff within 90 days from the date hereof, failure of which an eviction order will issue
- 2.The OCPD Bungoma to provide security to the court bailiff in the event order 1 above is not complied with
- 3.The Land register be rectified to cancel all entries relating to L.R No. Bungoma/Naitiri/1118 and to restore all the entries relating to L.R No. Bungoma/Naitiri/83
- 4.The Land Registrar Bungoma to dispense with the production of the original title deed and any other statutory documents in restoring entries relating to L.R No. Bungoma/Naitiri/83 in favour of the plaintiff
- 5.The prayer for mesne profits is declined
- 6.The Costs of the suit is awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution; ELC Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike v Khisa & 5 others", Case Analysis (2023). Environment & Land Case 33 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19040/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.