Macharia v Njoroge

unenforceable as it was time-barred under the Limitation of Actions Act, with 6 years having elapsed since 2007. In the alternative, he asserted that the transaction lacked the Land Control Board's consent, which ought to have been obtained within 6 months of the alleged agreement, and therefore, the respondent cannot have a valid claim for specic performance. 4. The appellant asserted that the suit was defective, bad in law, frivolous, vexatious, an abuse of the court process, and an attempt to defraud the appellant of his land. He sought the dismissal of the suit. 5. The defence was followed by a notice of preliminary objection dated 2nd May 2018, where the appellant raised an objection on a point of law that the order sought for specic performance/transfer could not issue as the alleged sale transaction oended the provisions of the Land Control Act (‘the Act’), and that the suit was bad in law and did not disclose a reasonable cause of action against the appellant. 6. It was submitted on behalf of the appellant, in support of the preliminary objection that the appellant lacked the capacity to sell the suit property at the time, as the same was still registered in the name of the deceased, and further that any claim for a nancial refund was legally time-barred under the Limitation of Actions Act. 7. On the part of the respondent, counsel submitted on the main suit and did not address himself to the question before the court, to wit, whether the suit could be disposed of by way of preliminary objection, without going into the merit of the case. 8. In determining the preliminary objection, the trial court was of the view that the objection was not specic on the section of the law relied on, and that whether or not the Land Control Board consent was obtained was a question of fact rather than a pure point of law. Further, that any factual determinations could only be properly resolved at a full trial. The court ruled that the appellant's preliminary objection was premature and dismissed it in a ruling dated 16th August 2018. 9. The appellant was aggrieved by the decision of the trial court and appealed to the High Court in ELCA No. 14 of 2018. In a memorandum of appeal dated 16th September 2018, the appellant raised ve (5) grounds faulting the trial magistrate for failing to nd that the appellant had no capacity to sell the suit property; the sale oended section six (6) of the Act; for not nding that the sale transaction between the parties was void for purposes of a refund of the consideration; and failing to nd that the sale agreement was not enforceable. 10. In a judgment delivered on the 27th of February, 2020, the learned Judge agreed with the trial court that the issue raised in the preliminary objection was not a pure point of law, as it required evidence to prove the same. On the second limb, whether the suit disclosed any reasonable cause of action, the learned Judge found that the appellant had not submitted on the same and deemed the ground to have been abandoned. The appeal was thus dismissed. 11. The decision of the High Court precipitated this second appeal. In a memorandum of appeal dated 24th September 2020, the appellant advanced four (4) grounds of appeal. He faulted the learned Judge for failing to nd that the preliminary objection raised in the lower court was based on matters of law and therefore should have been upheld; for failing to nd that the preliminary objection was specic on the section of the law breached and therefore did not require evidence; in nding that the issue as to whether Land Control Board consent was obtained was a matter of fact when the same was not raised by the respondent and by dismissing the appeal. 12. The appeal before us was heard on the Court’s virtual platform by way of written submissions. Learned counsel for the appellant led written submissions and a case digest, both dated 24th November 2023, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1976/eng@2026-09-25 2

page 2 of 5

urging that the learned Judge erred in law by failing to recognise that the preliminary objection raised a denitive, statutory point of law that did not necessitate any evidence. In support of this point, counsel relies on Hirani Ngaithe Githire vs Wanjiku Munge [1979] KEHC 4 (KLR), where the court held that section 6 of the Act is a mandatory statutory provision that cannot be altered or softened by any principles of equity or judicial interpretation. He urged that, therefore, any agreement regarding a controlled transaction for agricultural land automatically becomes illegal and absolutely void for all purposes if consent is not obtained from the Land Control Board within three months. 13. Counsel contends further that a valid preliminary objection can arise directly by clear implication from the pleadings and eectively dispose of a suit. He relied on John Onyango & Another vs Samson Luwayi [1986] KECA 82 (KLR), which made similar ndings. 14. Counsel emphasises that section 6 of the Act was breached, hence the point of law being referred to by the appellant. In support, counsel relies on Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited [1969] EA 696. Counsel further urged that the point raised in the objection satises the required threshold. 15. Additionally, counsel submits that the respondent pleaded, among other things, that the agreement was entered into in 2007, which makes the contract unenforceable under the Limitation of Actions Act. 16. Counsel urged the Court to nd the preliminary objection merited, and thus to overturn the rulings of the two courts below, and allow the appeal with costs. 17. Learned counsel for the respondent led submissions and a list of authorities, both dated 11th December 2023. Counsel argues that the current appeal lacks merit and should be dismissed with costs. He cited in support Rebecca Chumo vs Christina Cheptoo Chumo [2021] KEELC 626 (KLR), which cited Mukisa Biscuits Manufacturing Ltd vs West End Distributors (supra). 18. Counsel also relies on Andrew Maina Githinji & Another vs Attorney General & Another [2015] KEELRC 1373 (KLR), where the court explained the scope, nature and meaning of a preliminary objection and asserts that section 6 of the Act introduces complex factual questions, specically whether the vendor actively applied for and was refused consent, or if he failed to apply entirely and is simply using the statute as a shield to escape contractual duties. 19. Citing Aliaza vs. Saul (Civil Appeal 134 of 2017) [2022] KECA 583 (KLR), counsel underscores that courts must not rubber-stamp fraud or dishonesty by allowing dishonest vendors, driven by greed, to invoke the Act to resile from freely executed agreements after receiving full payment. He contends that the issue of consent requires a full trial to ascertain the facts and applicability of the doctrines of constructive trust and/or equitable estoppel. He submits that both courts below were correct in dismissing the preliminary objection, and the present appeal must suer the same fate. 20. We have carefully considered the record of appeal, the rival submissions, the authorities cited and the law. This being a second appeal, our mandate is conned to matters of law unless it is shown that the courts below based their decision on no evidence or on a misapprehension of the evidence or the courts acted on wrong principles of law. In Charles Kipkoech Leting vs Express (K) Ltd & Another [2018] eKLR, this mandate was considered by this Court, which stated as follows: “This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the court. See Mina Mugiria (1983) KLR 78, Kenya Breweries Ltd verses Godfrey Odongo, Civil Appeal No. 127 of 2007 and Stanley Muriithi & another versus Bernard Munene Ithiga (2016) eKLR for the holdings inter alia that, on a second appeal, the court connes itself to matters of law only unless it is shown that the Court below considered https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1976/eng@2026-09-25 3

page 3 of 5

matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” Similarly, in Thistle Limited, formerly t/a Sai Rock Beach Hotel vs. Chief Magistrate, Mombasa; Kombe (Interested Party) (Civil Appeal E052 of 2023) [2026] KECA 40 (KLR), the Court cited Selle vs. Associated Motor Boat Co. Ltd and reiterated that a second appellate court will not ordinarily interfere with the concurrent ndings of the courts below unless they are based on no evidence or on a misapprehension of the evidence or the courts acted on wrong principles of law. 21. From the memorandum of appeal and submissions by counsel, the issue falling for determination is one: whether the lack of the Land Control Board consent raised a pure point of law. Since the other issue, whether the suit is bad in law and does not disclose a reasonable cause of action against the appellant, was not canvassed before the High Court, the issue is not before us for consideration. 22. In Taib (Sued as the legal representative of the Estate of Sheikh Ali Taib Bajaber (Deceased) vs. Mayfair Establishments Limited & 3 Others [2026] KECA 897 (KLR), this Court referred to the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd, where the Court stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all facts pleaded by the opposite side are correct and which, if argued successfully, may dispose of the suit. The Court further emphasised that a preliminary objection cannot be raised where facts require ascertainment or where judicial discretion is sought. 23. Similarly, in Kenya County Government Workers Union vs. County Government of Narok & Another [2024] KECA 1843 (KLR), the Court cautioned that a preliminary objection cannot be founded on contested facts or matters requiring evidentiary proof. The Court held that: “ Therefore a Preliminary Objection cannot be raised if any fact has to be ascertained, or if the court is called upon to exercise judicial discretion. The court will also take into account that the Preliminary Objection must stem from the pleadings and raise pure point/s of law. It should not deal with disputed facts, nor should it derive its foundation from factual information. See the holding in the case of Oraro Vs Mbaja (2005) 1KLR 141, that: “Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.” 24. The appellant’s principal contention before the trial court was that the agreement for sale was void for want of the Land Control Board consent under section 6 of the Act. However, whether the consent was sought, obtained, refused, or whether the appellant refused to obtain the same to defeat the sale, as correctly observed by the learned Judge of the Environment and Land Court, could only properly be resolved upon a full hearing. 25. It is noteworthy that the lack of a Land Control Board consent does not always vitiate a sale. In Kitilit vs Kibet [2018] KECA 573 (KLR), this Court held that, despite the provisions of section 6 of the Land Control Act, the doctrines of constructive trust and proprietary estoppel may arise depending on the facts of a case. Likewise, in Maina & 87 Others vs Kagiri [2014] KECA 880 (KLR), the Court held that equitable doctrines may supersede the strict application of the Act where justice so demands. 26. The cited authorities demonstrate that the issue of the Land Control Board consent cannot invariably be determined in isolation from the factual matrix of a dispute. In the present case, the respondent pleaded that he fully paid the purchase price, undertook subdivision expenses and that the appellant, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1976/eng@2026-09-25 4

page 4 of 5

upon procuring registration of the resultant parcel in his own name, declined to process the transfer in his favour. Such allegations invited factual inquiry and consideration of equitable principles. 27. We therefore nd no fault in the conclusion reached by the trial court and armed by the ELC, that the issue was unsuitable for determination through a preliminary objection. 28. The appellant argues that he lacked capacity to sell the suit property because at the time of the agreement the land was still registered in the name of a deceased person. We note, however, that the preliminary objection before the trial court was principally anchored on want of the Land Control Board consent. The issue of capacity was neither distinctly framed nor substantively canvassed before the trial court. 29. Even assuming the issue had properly arisen, we are not persuaded that it was capable of disposing of the suit without evidence. The respondent pleaded that the agreement expressly contemplated succession proceedings and eventual transfer after transmission. Whether the appellant subsequently obtained title, whether he beneted from the agreement, and whether an equitable remedy could arise therefrom required factual interrogation. 30. We therefore agree with the learned Judge that the proper issue before the subordinate court was not merely whether the Land Control Board consent had been obtained, but whether, in light of all the surrounding circumstances, including the appellant’s capacity to contract and subsequent acquisition of title, the respondent’s claim disclosed triable issues deserving a full hearing. Those matters could not be conclusively determined on a preliminary objection. 31. In the end, we nd that this appeal lacks merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. S. ole KANTAI ......................................... JUDGE OF APPEAL ALI-ARONI ......................................... JUDGE OF APPEAL L. ACHODE ......................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1976/eng@2026-09-25 5

page 5 of 5