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|Case Number:||Ciivil Case 4636 of 1998|
|Parties:||ZIPPORAH WAIRIMU v ESTHER WANJIKU DANIEL, DANIEL MUTUGUTI KINYANJUI & BEATRICE WAITHIRA MBURU|
|Date Delivered:||22 Feb 2008|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Daniel Kennedy Sultani Aganyanya|
|Citation:||ZIPPORAH WAIRIMU v ESTHER WANJIKU DANIEL, DANIEL MUTUGUTI KINYANJUI & BEATRICE WAITHIRA MBURU  eKLR|
|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
Civil Appeal 71 of 1998
M’RINGERA M’NYANGE …….....……………………………. APPELLANT
M’MURUNGI M’NGATUNYI ………………………………. RESPONDENT
(An appeal from a judgment of N. Ithiga S.P.M. Meru dated 18th January 2002)
The genesis of this appeal briefly stated is that the appellant and the respondent were
shareholders in a land buying company, Katheri Farmers Company Ltd, where according to
the respondent, he held 3 acres of land while the appellant held 2 ½ acres.
It is the respondent’s case that in 1979 he entered into an oral agreement with the appellant
wherein it was agreed that he (the respondent) would surrender his 3 acres at the Katheri farm
in exchange with the appellant’s 3 acres to be acquired by Katheri Farmers Co. Ltd at Kisima
To this end the two exchanged receipts in respect of the two farms and the appellant
consolidated the 3 acres from the respondent with his 2 ½ acres at Katheri farm to make Plot
Further, the respondent maintained that it was a term of their oral agreement that should
Katheri Farmers Co. Ltd fail to acquire Kisima Farm, the appellant would surrender the
respondent’s 3 acres at Katheri Farm. As fate would have it, Katheri Farmers Co. Ltd failed
to acquire Kisima Farm and naturally the respondent expected the applicant to surrender to
him the 3 acres as agreed verbally. But that was never to be as the appellant flatly refused to
surrender the land prompting the suit which has given rise to this appeal.
After a full trial where the respondent called three witnesses while the appellant was the only
witness on his side, the trial court found that the respondent was entitled to the three (3) acres
in question. The appellant on his part maintained that it was Katheri Farmers Co. Ltd that
asked shareholders who were interested in buying shares in the Kisima Farm to do so through
Through Katheri Farmers Co. Ltd, the appellant paid for 3 acres which he surrendered to
Katheri Farmers Co. Ltd in exchange of 3 acres at Katheri Farm. He admitted that the latter 3
acres belonged to the respondent. That when the sale of Kisima Farm failed the shareholders
who had paid had refund made to them.
He was categorical that he did not owe the respondent any land. He was therefore aggrieved
by the lower court’s decision directing him to surrender three (3) acres from PLOT NO. 1160
Katheri Farm, hence this appeal. He raises six grounds, which were argued before me on 31st
The appellant has challenged the judgment arguing that the suit was barred by the statute of
limitation whether it is considered as a suit to recover land or a suit based on contract as the
cause of action arose in 1979 while the suit was filed on 7th January 1994. To buttress the
submissions on this point the case of Javed Iqbal Abdul Rahman and Adila Ali Bashir V.
Bernard Wekesa Sambu and Another, Civil Appeal No. 11 of 2001, was cited.
The second ground of appeal is to the effect that since Katheri Farmers Co. Ltd was a party to
the agreement, the failure to join it in the suit was fatal. Thirdly, that there was no consent
from the relevant Land Control Board as the transaction related to a controlled area. The case
of Stanley Mbugua Gachie V. Lakeli Waithera & 2 others, Civil Appeal No. 153 of 1996
was cited in support of this position.
Responding to these submissions, the respondent’s counsel argued that Katheri Farmers Co.
Ltd failed to acquire Kisima Farm and informed its members in 1986 and that that was when
the cause of action arose. The respondent came to court in 1997, within the 12 years
limitation. He further argued that Katheri Farmers Co. Ltd was not a party to the agreement
and was similarly not responsible for the frustrated contract.
After the agreement was frustrated it was correct for the trial magistrate to find that the parties
were to revert to their original positions, counsel further submitted, relying on Chemilil Sisal
Estate Ltd. V. Makongi Ltd, (1967) EA 166. The foregoing constitute the rival arguments
in this appeal. Being the first appellant court, I am bound to re-evaluate the evidence adduced
in the court below in order to arrive at my own independent conclusion in the matter.
The evidence of the appellant was rather disjointed although I hasten to add that I did not have
the benefit of seeing his demenour. In one breath he says that the respondent had no land at
Katheri farm while in another breath he says that the respondent had 3 acres at Katheri Farm.
He admits in cross-examination that he got 3 extra acres at Katheri farm which was the
respondent’s land but conveniently argues that it was transferred to him by Katheri Farmers
Co. Ltd. Again his testimony in chief tends to suggest that the transaction was initiated and
concluded by Katheri Farmers Co. Ltd yet he explicitly admits that the agreement was
between the respondent and himself. See also paragraph 3 of the defence. Indeed this latter
position; that the transaction was between the parties herein is supported by the evidence of
PW2, Stephen Muriira and PW3 Jeremiah Kaburia, who witnessed the transaction. The
inevitable conclusion is that there was indeed an unwritten agreement between the parties to
exchange land or shares. As a result the respondent surrendered to the appellant his three (3)
acres of land at Katheri Farm in exchange with shares representing the equivalent at yet to be
acquired Kisima Farm.
The issues for determination are whether the transaction was a nullity due to lack of Land
Control Board consent; whether the suit is time barred; whether Katheri Farmers Co. Ltd
ought to have been joined in the proceedings in the court below; and finally whether the
transaction was frustrated.
It is not in dispute that the alleged agreement between the appellant and respondent was oral.
There is also evidence from both sides that the agreement was for the exchange of the
respondent’s 3 acres at Katheri Farm with the appellant’s shares in Kisima Farm once
First it ought to be noted that the both the plaint and defence do not state when the alleged
agreement was entered into. However, from the respondent’s own testimony and those of his
witnesses, PW2 Stephen Muriira, PW3 Jeremiah Kaburia and even the evidence of the
appellant himself, it is clear that the alleged transaction was in 1979. What was the law
regarding disposition of any interest in land at that time? Section 3(3) of the Law of Contract
Act, before the subsequent amends in 1990, 1996 and 2002, provided as follows:-
“(3) No suit shall be brought upon a contract for the disposition of an interest in land
unless the agreement upon which the suit is founded, or some memorandum or note
thereof, is in writing and is signed by the party to be charged or by some person authorized
by him to sign it.
Provided that such a suit shall not be prevented by reason only of the absence of writing,
where an intending purchaser or lessee who has performed or willing to perform his part of
(i) has in part performance of the contract taken possession of the property or any part
(ii) being already in possession continues in possession in part performance of the
contract and has done some other act in furtherance of the contract.”
The proviso does not apply to the circumstances of this appeal as the respondent had not
obtained possession of the Kisima farm which was yet to be acquired. The alleged agreement
being one for the disposition of an interest in land ought to have been in some form of writing
and at least signed by the appellant. The only exhibits produced at the trial by the respondent
were two receipts acknowledging payment of survey fees in 1990. The two, in my view do
not constitute, in terms of section 3(3) of the Law of Contract Act, a memorandum or some
It follows, therefore, that the transaction was a nullity for failing to be compliant with the Law
of Contract Act. It was argued for the appellant that the suit was time barred having been
bought in 1994 while the cause of action arose in 1979. But according to counsel for the
respondent, the cause of action arose in 1986 when Katheri Farmers Co. Ltd informed its
members of the failure to acquire the Kisima farm.
Section 4(1) of the Limitation of Actions Act limits an action founded on contract to six (6)
years. I have, however, found that there was no valid contract. The respondent’s claim
according to the plaint is one for the transfer of his 3 acres acquired by the appellant and
amalgamated with the latter’s parcel at Katheri farm to form Plot No. 1160. It is in my
opinion an action to recover land in terms of section 7 of the Limitation of Actions Act must
be brought within twelve (12) years from the date on which the right of action occurred
Having found that there was no valid contract to transfer the suit land to the appellant it
follows that the cause of action occurred in 1979 when the alleged transfer took place. This
suit was instituted on 7th January 1997, some fifteen (15) years after the respondent parted
with his 3 acres to the appellant, clearly outside the period of limitation for recovery of land.
The respondent, accordingly, was barred from instituting the suit.
The role of Katheri Farmers Co. Ltd was limited only to facilitation of the acquisition of
Kisima farm. The ultimate agreement whether to exchange the land and the shares remained
firmly with the parties herein. Katheri Farmers Co. Ltd cannot be held responsible for the
failure to acquire Kisima farm as the same was due to the change of mind of the owner(s) of
Finally, there is no dispute that the suit land is agricultural land situated within a land control
area. By dint of section 6(1) (a) of the Land Control Act the parties ought to have obtained a
consent from the land control board of the area. Section 6(1) (a) of the Land Control Act
“6. (1) Each of the following transactions –
(a) The sale, transfer, lease, mortgage, exchange, partition or other disposal of or
dealing with any agricultural land which is situated within a land control area:
(c) The issue, sale, transfer, mortgage or any other disposal of or dealing with any
shares in private company or co-operative society which for the time being owns
agricultural land situated within a land control area,
Is void for all purposes unless the land control board for the land control area or division
in which the land is satiated has given its consent in respect of that transaction in
accordance with this Act” (emphasis supplied).
There is no doubt that the requisite consent was not obtained from the relevant board.
For that reason alone the transaction was void. In such a case section 7 of the Land Control
Act provides that if any money or valuable consideration has been paid, the same is
recoverable as a debt by the person from whom it was passed to the recipient subject to
section 22 of that Act. Section 22 makes it a criminal offence for any person who receives the
money or enters into or remains in possession of land the subject of a void contract. Recovery
of the consideration provided for under section 7 of the Land Control Act must be done within
the period limited by the statute.
For all the reasons stated in this judgment I find that the trial court fell into grave error of law
and fact by awarding three (3) acres from PLOT NO. 1160 KATHERI to the respondent. The
appeal is allowed and the judgment of the trial court set aside.
I award costs of this appeal and in the lower court the appellant.
Dated and delivered at Meru this 29th day of April 2008.