Kulankash v Okeyo & another (Environment and Land Appeal 11 of 2020) [2025] KEELC 3547 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim was statutorily time barred
The issue could not be entertained because limitation was never pleaded in the defence to the counterclaim; in any event, time runs from the date of breach, not the date of the contract.
Order 2 rule 4 of the Civil Procedure Rules requires any relevant statute of limitation to be specifically pleaded. The Appellant raised limitation for the first time in submissions on appeal; allowing it would determine an unpleaded issue in the first instance contrary to established principles. On the substance, section 4(1) of the Limitation of Actions Act measures six years from the date the cause of action arose, i.e. the date of the alleged breach, not the date of the agreement.
Whether the agreement was void for failure to procure Land Control Board consent
Yes. The suit property was agricultural land and, no Land Control Board consent having been obtained within the prescribed period, the sale transaction was void under section 6 of the Land Control Act.
Section 6 of the Land Control Act is categorical that controlled dealings affecting agricultural land 'shall be void for all purposes' unless the Land Control Board consents. Parliament left the Land Control Act intact when revising land statutes under Article 68 of the Constitution 2010, and the Court of Appeal in David Sironga Ole Tukai affirmed the consistent 47-year line of authority that absence of consent renders the transaction void. The High Court is bound by that decision.
Whether equity can override the Land Control Act and whether specific performance was available
No. Equitable doctrines cannot be imported into the Land Control Act; the contract being void, it was invalid and unenforceable, disentitling the 1st Respondent to specific performance. The unpleaded constructive trust could not be raised on appeal.
Specific performance is an equitable remedy predicated on a valid enforceable contract; a contract void under section 6 of the Land Control Act is unenforceable. The Court of Appeal in David Sironga Ole Tukai held there is no room to import constructive trust or estoppel into the Act, and section 6(2) expressly makes declaration of trust over agricultural land a controlled dealing. The 1st Respondent never pleaded a constructive trust in his counterclaim nor filed a cross-appeal, so the court could not entertain it.
What remedy was available to the 1st Respondent
Recovery as a debt of the monies paid, under section 7 of the Land Control Act: refund of Kshs. 2,056,000/- with interest at court rates from filing of suit.
Section 7 of the Land Control Act provides that money paid in a transaction that becomes void is recoverable as a debt. The principle against unjust enrichment reinforces this. The Appellant had expressed willingness to refund the monies paid. The court accordingly entered judgment for the 1st Respondent for Kshs. 2,056,000/- with interest at court rates from the date of filing suit until payment in full, substituting the trial decree of specific performance.
Legal principles established
#- A transaction affecting agricultural land is rendered void by failure to obtain Land Control Board consent, and equitable doctrines such as constructive trust cannot override section 6 of the Land Control Act
- The only remedy available where a controlled transaction becomes void is recovery of money or valuable consideration paid as a debt under section 7 of the Land Control Act
- Limitation is a matter that must be specifically pleaded under Order 2 rule 4 of the Civil Procedure Rules and cannot be raised for the first time on appeal
- Parties are bound by their pleadings and a court cannot determine issues not raised in the pleadings
- Time under section 4(1) of the Limitation of Actions Act for a contract claim runs from the date of breach, not the date of the contract
Court orders
#- 1.The judgment, order and decree of the Learned Trial Magistrate Hon. M. Kasera (SPM) in Kajiado CMCCC 505 of 2017 delivered on 28th May 2021 is set aside and substituted with an order entering judgment in favour of the 1st Respondent against the Appellant for the sum of Kshs. 2,056,000/- with interest at court rates from the date of filing suit until payment in full
- 2.The Appellant is ordered to refund the 1st Respondent the sum of Kshs. 2,056,000/- with interest at court rates from the date of filing suit until payment in full
- 3.The costs of the appeal and the costs of the suit and counterclaim in Kajiado CMCCC 505 of 2017 are awarded to the 1st Respondent against the Appellant
- On appeal from
- Chief Magistrate's Court, Kajiado
- Kajiado CMCCC 505 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (appeal against the judgment of Hon. M. Kasera, SPM, in Kajiado CMCCC 505 of 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jackson (Suing on behalf of the Estate of Somet Ole Tanyaag) v Sigei (Environment and Land Case E021 of 2021) [2026] KEELC 3989 (KLR)[2026] KEELC 3989 (KLR)29 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Kulankash v Okeyo & another (Environment and Land Appeal 11 of 2020) [2025] KEELC 3547 (KLR)", Case Analysis (2025). Kajiado CMCCC 505 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3547/eng@2025-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.