Githu v Katibi [1990] KECA 47 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that buying agricultural land without Land Control Board consent makes the sale agreement void, killing any right to file a caveat.
What this practically means
#Executive summary
#Key legal issues
#Whether the sale agreement was a controlled transaction under section 6(1) of the Land Control Act
Yes - the agreement for sale of agricultural land was a controlled transaction caught by section 6(1), not excluded by section 6(3).
The court applied the statutory definition of 'controlled transaction' as one of the transactions specified in section 6(1) and not excluded by section 6(3). The subject-matter of the agreement was sale of agricultural land, one of the controlled transactions, and the agreement fell within no exclusion. Section 9(2) confirms that a sale agreement is an agreement for a controlled transaction.
Effect of failure to obtain land control consent on the caveat
The void agreement conferred no registrable interest, so the plaintiff had no right to a caveat under section 57(1) of the Registration of Titles Act and the extension order could not stand.
Since no application for consent was ever made, the agreement became void. A void agreement creates no legal interest capable of registration; consequently the plaintiff could not claim any right under section 57(1) of the Registration of Titles Act and the High Court had no basis to extend the caveat.
Whether an agreement for a controlled transaction is distinct from the transaction itself for voidness purposes
No - the distinction is 'one without a difference'; an agreement for a controlled transaction becomes void just as the transaction does.
Counsel for the respondent argued that only the controlled transaction, not the agreement for it, becomes void absent consent. Masime JA rejected this, holding that an agreement must exist before an application for consent can be made, and it would be contrary to the policy of the Act to hold that a transaction becomes void while the agreement to be party to it does not. The position follows EK Shamalla v Gerry JB Chibeu.
Legal principles established
#- An agreement for the sale of agricultural land is an agreement for a controlled transaction under section 6(1) of the Land Control Act and becomes void where the requisite land control board consent is not obtained.
- Where no valid application for land control consent has been made, the agreement becomes void for all purposes and confers no legal interest capable of supporting a caveat under the Registration of Titles Act.
- A transaction cannot be revived unilaterally; revival after the statutory period requires the parties jointly to seek the High Court's extension of time under the proviso to section 8(1), amounting to a novation.
Court orders
#- 1.Appeal allowed with costs
- 2.Costs of the High Court proceedings awarded to the appellant
- 3.The order of the High Court dated December 20, 1988 vacated forthwith
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case No 4758 of 1987
- Jurisdiction invoked
- Appeal from the High Court (first appeal under the Court of Appeal's appellate jurisdiction); originating summons under section 57(8) of the Registration of Titles Act, cap 281 and Order XXXVI rule 3B of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githu v Katibi [1990] KECA 47 (KLR)", Case Analysis (1990). Civil Appeal No 47 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/47/eng@1990-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.