Case Metadata |
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| Case Number: | Civil Case 191 of 2004 |
|---|---|
| Parties: | WAIRIMU GITUKIO MUCHUNU V ESTHER NJAMBI KIOI |
| Date Delivered: | 09 Dec 2005 |
| Case Class: | Civil |
| Court: | High Court at Nakuru |
| Case Action: | |
| Judge(s): | Daniel Kiio Musinga |
| Citation: | WAIRIMU GITUKIO MUCHUNU V ESTHER NJAMBI KIOI [2005] eKLR |
| Case Summary: | Land law - How an agreement for sale of agricultural land becomes void - Effect of an agreement for sale of agricultural land becoming void - Whether the plaintiff has established her claim on a balance of probabilities - Section 9(2) of the Land Control Act Cap 302 Laws of Kenya. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 191 of 2004
WAIRIMU GITUKIO MUCHUNU…..……………………..……………PLAINTIFF
VERSUS
ESTHER NJAMBI KIOI………………………………….…………..DEFENDANT
JUDGMENT
The plaintiff filed a suit against the defendant saying that on 27th March, 2000 she sold to the defendant half and acre of a parcel of land known as Bahati/Bahati Block 1/864 at an agreed purchase price of Kshs.165,000/- and the defendant paid a sum of Kshs.145,000/- and she was given possession of the said portion of land. On 10th February, 2003 she wrote a letter to the Chairman of Nakuru Land Control Board requesting the board to stop all dealings with the said parcel of land. The plaintiff said that the defendant stopped the Land Control Board from giving its consent to the said transaction because she was not satisfied with the manner in which the sub-division was carried out. She further stated that she was willing to refund the money so far paid to her and urged the court to order the defendant to vacate the said parcel of land since the said transaction was subject to consent of the Land Control Board which was never obtained and was therefore null and void.
The defendant was on 22nd July 2004 served with the plaint and summons to enter appearance but did not do so nor file any defence and the plaintiff prayed for interlocutory judgment which was entered on 21/10/04 and so the matter came up for formal proof only.
I am satisfied that the plaintiff has established her claim on a balance of probabilities. Under the provisions of Section 9(2) of the Land Control Act Cap 302 Laws of Kenya, an agreement for sale of agricultural land becomes void unless the Land Control Board for the land control area where the land is situated has given its consent.
The Court of Appeal so held in GITHU VS KATIBI [1990] K.L.R. 634 where such a transaction becomes void, only the purchase price is refundable. The plaintiff should therefore refund to the defendant a sum of Kshs.145,000/- which she paid and the defendant should thereafter vacate the said premises.
The plaintiff shall have the costs of this suit.
DATED, SIGNED & DELIVERED at Nakuru this 9th day of December, 2005.
D. MUSINGA
JUDGE
9/12/2005
Judgment delivered in open court in the presence of Mr. Mbiyu holding brief for Mr. Ikua for the plaintiff and N/A for the defendant.
D. MUSINGA
JUDGE
9/12/2005
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