Thank you for the great legal support you give Kenyans. Here’s my problem: My rural home is a prime place located very near Nairobi. Our family land is registered in our mother’s name.
In 2013, I sold an 18 feet by 70 feet parcel for Sh 170,000. This was part of my inheritance. We had a sale agreement that bears both my mum's signature and mine. The advocate agreement presumes a 1000 per cent fine over the sale amount in case of default.
The issue is that the buyer claimed the plot was too small and even though I added another 18 feet by 70 feet, she was still not satisfied and even went ahead to incite my brother to go against me.
The two of them added another 18 feet by 70 feet without me or my mother’s consent. They used a different lawyer.
Now, how can I reverse the sale agreement and refund the buyer? Is it legally binding for me to be charged the 1000 per cent fine as per the agreement? I’m tired of this situation and my mother got very angry for she wasn't made aware of the added part of my brother's plot deal.
I pray to settle the matter in peace. Thanks.
I salute you in admiration. Your compliments encourage service to those in need of legal knowledge and willing to resolve impending conflicts in their day to day experiences. Your situation is saddening and the least regrettable.
Nonetheless, it offers a platform to discuss two issues that are separate but related. First is what constitutes acquisition of private land in Kenya.
Second is what legal instruments are necessary for such process.
You mention having sold an 18feet by 70 feet land in 2013 for which the buyer claims inability to acquire title due to its small size. You further concede your brother adding another 36feet by 70feet piece to appease the buyer’s desire to acquire a title.
Let it be clear that Land Control Board decides what is the smallest parcel that can have title.
There is no law to determine minimum or maximum land ownership by an individual, but Cabinet secretary in charge of land has powers through a scientific study to determine economic viability of minimum or maximum acreage that a person can possess. In this setting, the claims of the buyer are contestable.
Second, and which is facilitative to land acquisition is the necessary legal instrument herein referred to as contract.
This points to four important questions.
What is an implementable contract? Who can review or rescind a contract? Is 1000 per cent penalty term in lieu of breach unfair? and what are the implications of non-performance of a contract?
To contextualise this, cognizance is made of your mother being registered owner of the land, and until a transfer is effected bequeathing the same to you or your brother, none of you (two brothers) has legal capacity to dispose off the land. In short, the contract in discussion is invalid, as the parties involved do not qualify to undertake the purported transaction.
This position remains despite you having received Sh170,000.
Similarly, where land is on sale, contract law demands the following: sale agreement be in writing: agreement be signed by buyer and seller: and their signatures be attested by witnesses.
This enables the aggrieved party to seek legal redress should breach occur. Consequently, it is difficult to rescind or review a contract that is non-existent from its structure in strict legal terms.
Therefore, the 36feet by 70feet addition of land to the buyer is in itself an illegality. Without legal capacity to create a contract, similarly no power exists to dismantle, not unless there existed power of attorney from the start.
None is alluded to in your case. Moreover, the 1000 per cent penalty if based on the principle of contract by conduct, invalidity notwithstanding, creates an obligation on your part, since you have received the initial sum of 170,000. Still, you find this unpalatable.
You can canvass this as a term that is unfair within the sale agreement likely impacting adversely on you and entire family, either in a court of law or other forums preferred as alternative dispute resolution mechanisms including council of elders.
In conclusion and for an amicable result three scenarios portend: a competent court declaring this contract invalid and unenforceable.
An adjudicating body under principles of equity ordering you to refund the 170,000 plus interest accrued, and specific performance for the 1000 per cent in lieu of breach: both (you and the buyer) referred to mediation through court annexed mediation process.
Eric Mukoya is the Executive Director, Legal Resources Foundation Trust. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]