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Court of AppealDismissedCivil Appeal 32 of 2005· [2010] KECA 66 (KLR)

Joseph Boro Ngera & 1 other v Wanjiru Kamau Kaime Karungari Kamau Kaime & 1 other

Court of Appeal of Kenya
12 November 2010
MKM. Ole KeiwuaJOJ. W. Onyango OtienoJNJ. G. Nyamu
4,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a land buyer get consent after the deadline because he had already occupied farmland without approval, so buyers must get Land Control Board consent first.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nakuru from the judgment of Ondeyo, J. of the High Court at Nakuru dated 21st January 2003 in H.C.C.C. No. 224 of 1987. The respondents, widows of the original owner of about 1,060 acres (LR No. 5282, Njoro), approached the appellant, a relative, to pay off their Agricultural Finance Corporation debt. The appellant paid Ksh.1,011,537/40 to AFC on the understanding that this constituted the purchase price for 300 acres of the land. Two sale agreements were executed but no Land Control Board consent was obtained, so the agreements were void under section 6 of the Land Control Act, as the parties had agreed by consent in the trial court. The trial Judge refused to extend time for applying for consent because the appellant had breached section 22 of the Act by entering and remaining in possession of the land, dismissed the respondents' claim for damages, and ordered the appellant to vacate within 90 days and the respondents to refund Kshs.1,011,537/40, with each party bearing its own costs. On appeal, the appellant argued only that the Judge should have extended time once she found a case for extension was made out. The Court of Appeal, applying Mbogo v Shah, held that the extension power under the proviso to section 8(1) is discretionary and that the Judge exercised it properly, the appellant having breached section 22 'with abandon'. The Court also held that the 90-day grace period was a normal eviction allowance, not an endorsement of the breach. The appeal was dismissed, with a rider that the refund of Kshs.1,011,537/40 be paid within 90 days failing which it would attract court-rate interest, and each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the trial Judge erred in refusing to extend time for applying for land control consent despite finding the appellant had made out a case for extension

Holding

The refusal was a proper exercise of the Judge's discretion; the appellant's conduct in breaching section 22 of the Land Control Act by entering and remaining in possession of the land was a legitimate consideration against extending time

Reasoning

Section 8(1) of the Land Control Act uses the word 'may', showing the High Court exercises discretionary powers in granting extension. Having found the appellant had reasonable grounds for delay, the Judge still had to exercise discretion and could properly weigh the appellant's conduct - entering the land, excising 300 acres and farming it contrary to section 22 even after the transaction was avoided. On a first appeal the Court re-evaluated the evidence and found no misdirection warranting interference.

p. 5
02

Whether the 90 days granted to vacate the land contradicted the Judge's finding that the appellant had breached section 22

Holding

The period was a normal allowance for an evicted party to remove his property and did not amount to endorsing or extending the offence

Reasoning

The Court held the appellant was already utilizing the land and needed time to remove fencing material, cut grass and other items. Eviction practice requires reasonable time to move out; such a grace period cannot be construed as endorsing breach of section 22. The argument that the Judge thereby endorsed the offending act was rejected.

p. 6
03

Whether the Court of Appeal should interfere with the trial Judge's discretionary decision

Holding

No grounds for interference were established; the discretion was exercised judicially and the decision was not plainly wrong

Reasoning

Applying Mbogo v Shah, the Court reiterated that an appellate court interferes with discretion only where the Judge misdirected himself in some matter and arrived at a wrong decision, or where it is manifest from the case as a whole that the Judge was clearly wrong and misjustice resulted. The Court analysed the evidence afresh, as required on a first appeal, and found none of these grounds satisfied.

p. 5

Legal principles established

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  • A Court of Appeal will not interfere with the exercise of discretion by a trial Judge unless satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Judge was clearly wrong and there has been misjustice
  • The power of the High Court to extend the six-month period for applying for land control consent under the proviso to section 8(1) of the Land Control Act is discretionary, and a decision to refuse extension will not be disturbed on appeal absent a misdirection or plainly wrong result
  • Time granted to an occupier to vacate land in an eviction is normal and is not to be construed as endorsing a breach of section 22 of the Land Control Act

Court orders

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  1. 1.Appeal dismissed
  2. 2.The respondents to pay the appellant Kshs.1,011,537/40 within ninety days of the date of the judgment, failing which interest to be paid at court rates from the date of the judgment in the superior court until payment in full
  3. 3.Each party to bear its costs of the appeal
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 224 of 1987
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (no specific constitutional provision invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Boro Ngera & 1 other v Wanjiru Kamau Kaime Karungari Kamau Kaime & 1 other", Case Analysis (2010). Civil Appeal 32 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/66/eng@2010-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.