“Consent was not obtained” can describe different events. A board may have considered an application and refused it. Alternatively, an application may never have reached the board because a party did not cooperate.
Aliaza concerned the second kind of problem. The Court of Appeal examined a seller's admitted receipt of the full price and delivery of possession alongside his later reliance on missing consent.
Case identity
- Case: Aliaza v Saul.
- Court: Court of Appeal, Civil Appeal 134 of 2017, on appeal from the Environment and Land Court.
- Decision date: 24 June 2022.
- Citation: [2022] KECA 583 (KLR).
- Primary judgment: Kenya Law judgment.
The decision contains the lead judgment of Mumbi Ngugi JA and concurring judgments by Kiage JA and M'Inoti JA.
A completed earlier purchase, then unfinished later sales
The parties had transacted before. An earlier purchase had proceeded through consent and title issuance. The dispute concerned two later agreements, made in 2002 and 2004, for a combined 1.3 acres.
The buyer paid the combined KSh 217,000 price and received possession. He said he developed the land and later obtained orders concerning an access dispute. The seller admitted the sales, payments, possession and developments, but sought eviction on the ground that the later transactions lacked Land Control Board consent (paragraphs 7–13 and 19).
The buyer counterclaimed for specific performance. Alternatively, he sought repayment, compensation for improvements and damages. The trial court ordered him to leave within three months or face eviction, and awarded repayment of the purchase price with interest rather than transfer. Each party was to bear its own trial costs (paragraphs 1–2 and 8).
That lower-court result is essential context. The appellate court was not simply confirming an uncontested purchaser's title; it was considering whether eviction and repayment were the appropriate legal outcome.
The distinction between inaction and refusal
The Court of Appeal reviewed differing decisions on consent and equitable relief. It expressly acknowledged a conflict in the authorities rather than suggesting the law had always produced one answer (paragraphs 23–31).
In paragraphs 33–34, the lead judgment distinguished refusal for public-policy reasons from a seller's failure to participate in applying. The board had not considered and rejected this transaction. Its role should not be confused with a party's non-cooperation.
The court also examined the consent framework, including the six-month period for an application and the power to extend time for sufficient reason (paragraphs 20–22). It did not abolish consent requirements or authorise buyers to plan around them.
On these admitted facts, the court found a constructive trust and held that the seller's reliance on missing consent should not defeat the buyer's interest (paragraphs 39–43). That was an evidence-based conclusion about this transaction, not a presumption arising whenever a buyer alleges unfairness.
Pleading and compensation were separate questions
The seller argued that constructive trust had not been pleaded. The appellate court considered that the issue had nevertheless been raised in trial submissions and addressed by the trial judge, so it had been left for determination (paragraph 41).
That reasoning is not advice to omit an important claim. A reviewing advocate needs to consider the pleadings, evidence and actual course of the case.
Nor did every financial claim succeed. The lead judgment agreed with the difficulty the trial court identified in locating the alleged improvements for the special-damages claim. It nevertheless found the purchased land sufficiently identified for trust relief (paragraphs 42–43).
At paragraph 44, the proposed orders replaced the trial outcome with specific performance of the 16 September 2002 and 4 October 2004 agreements and transfer, plus costs in both courts to the buyer. Paragraphs 45–50 record concurrence and make clear that those were the court's orders. The court did not award the claimed improvements valuation as an additional payment.
Questions beyond a missing consent letter
- Is there an application, a recorded refusal, or evidence that no application was completed?
- Do the sale agreements and payment records distinguish this purchase from earlier dealings between the same parties?
- What evidence links possession and improvements to the actual land in dispute?
- Has an advocate assessed the pleaded remedies and later consent authorities?
A later-history search on 11 September 2026 did not verify an order changing this disposition. It does not establish absence of further proceedings or the current register.
Explore ArdhiScore screening and its limits. Screening can help organise available parcel identifiers, dated evidence, source citations and unresolved questions. It is not a title certificate, registry record or legal opinion, and does not guarantee discovery of private non-cooperation. An official search, advocate and appropriate field checks remain separate. This article is educational, not legal advice.