Highlights
Courts, in their discretion, often grant the specific performance remedy as sought by different litigants in their judicial quests. Recent precedents have seen courts order specific performance over disputed land transactions. The jurisprudence of the specific performance has long been established that the doctrine is pinned on valid enforceable contracts as discussed in Kulankash v Okeyo.
On 25th April 2025 the Environment and Land Court at Kajiado overturned the trial court’s decision in Philip Kirapei Kulankash -vs- Odongo Mark Okeyo CMCC No. 550 of 2017. The court delivered a ground-breaking judgment ruling that specific-performance for transfer of agricultural land could not be effectively pleaded, where the Land Control Board consent from the respective land control area had not been procured. Ideally, specific performance is appropriate in the instance of a valid enforceable contract and where any other alternative adequate remedy is lacking.
History
The facts spurn a decade back in 2010 when the Appellant entered into an agreement with the 1st Respondent for sale of land title number Kajiado/Kitengela/17228 for a sum of Kes. 3,736,000. In the course of the transaction, the 1st Respondent registered a caution against the subject title restricting dispositions on the parcel of land; while asserting a ‘purchaser’s interest’ in furtherance of the said sale agreement and consequently undermining the Appellant’s proprietary rights over the land.
The appellant sought orders at the Magistrate’s court, including a declaration that agreement dated 8/03/2010 be voided and removal of the caution lodged by the 1st Respondent on the subject title. The 1st Respondent counter-claimed the suit at the trial court accusing the appellant for breach without probable excuse for failing to avail completion documents as per the sale agreement; and proceeded to seek judgment against the appellant for specific performance and damages for breach of contract. The trial court allowed the prayer for specific performance and ordered transfer of the disputed title to the 1st Respondent and the payment of the balance of the purchase price by the 1st Respondent upon registration of the transfer.
The ELC, while overturning the trial court’s decision; awarded damages to the 1st respondent as a statutory remedy provided under the Land Control Act.
Principal ratio; Specific Performance Cannot Remedy a Contract Rendered Defective by Reason of Illegality, Mistake, or Non-Compliance with Formal Requirements
The highlight of the appellate court’s decision is the undisputed reasoning that specific performance cannot be effectively claimed in the absence of a valid enforceable contract without defects of mistake, illegality or failure to comply with requisite formalities. Contracting parties ought to comply with the necessary formal requirements under the subject agreements, for instance procuring the LCB consent in sale agreements over agricultural land, as required by law. Notably, non-adherence with formal requirements in the subject matter of a contract is as good a defect as illegality or mistake.
The court visited the Court of Appeal’s holding in David Sironga Ole Tukai –vs- Francis Arap Munge & 2 others (2014) eKLR, where the court reiterated that failure to procure the LCB consent voided the subject contract pertaining to agricultural land. Thus, failure to procure the LCB consent in the instant transaction rendered the contract void, hence it was unenforceable and capable of disentitling the 1st Respondent of the order of specific performance.
Additionally, the ELC court held that the unequivocal comprehensive provisions of the statute left no room for importing equitable doctrines into the Act; thus, introduction of a constructive trust by the 1st Respondent, albeit ingeniously, would not suffice because the statute regards constructive trusts over agricultural land as a ‘dealing in that land’ necessitating procurement of the LCB consent.
It was also the court’s finding that the statute already provides for damages as an adequate remedy in the instant transaction that was rendered void, obviating the order of specific performance.
Governing law
The Land Control Act stipulates the necessity of obtaining the requisite consent over transactions in agricultural land, including constructive trusts over agricultural land. The statute also provides for refund if controlled transaction within the Act becomes void.
The court relied on the Limitation of Actions Act to assign a cause of action the meaning of occurrence a breach.
Conclusion
Philip Kirapei Kulankash -vs- Odongo Mark Okeyo [2025] (eKLR) is precedent that specific performance cannot be effective where a contract is rendered unenforceable. The remedy could be only be awarded in valid enforceable contracts, where any other adequate alternative remedy is lacking. The Appellant failed to obtain the requisite LCB consent to facilitate the transfer of land to the from the 1st respondent, rendering the contract defective of formality.
The order of specific performance directing transfer to the 1st respondent was nugatory in the absence of the requisite consent. The decision is a reminder that specific performance can only be effective where: there is a valid enforceable contract; any adequate alternative remedy is lacking; it would not cause hardship of undue influence on the debtor. Moreover, litigants cannot ingeniously or otherwise submit equitable claims in place of comprehensive statutory provisions. Ultimately, equity does not defeat the law, but rather follows the law.
What This Means for You
If there’s one thing to take away from Kulankash v Okeyo, it’s this: when it comes to buying or selling land, getting the paperwork right isn’t optional. If you’re buying, make sure the Land Control Board consent is applied for early and actually granted before you hand over most of your money. Lodging a caution, moving onto the land, or even building on it won’t protect you if that consent was never obtained. If you’re selling, know that a buyer can’t force you to transfer agricultural land without the consent, but you will still be expected to refund whatever you’ve been paid. Whichever side of the deal you’re on, talk to an advocate before you sign anything. A little advice at the start can spare you years in court, and the parties in this case, whose dispute dragged on from 2010 to 2025, would likely agree. At the end of the day, the courts will follow the law, and good intentions can’t take the place of doing things properly. If you have any questions about this decision or a land deal you’re considering, we’d be happy to help.
Disclaimer: This update is for general information only and does not constitute legal advice. For advice on your specific circumstances, please contact CHIMEI AND MALENYA COMPANY ADVOCATES EMAIL info@cmcadvocates.co.ke
