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Court of AppealDismissedCivil Appeal 217 of 2003· [2009] KECA 315 (KLR)

John Onyancha Zurwe v Oreti Atinda [2009] KECA 315 (KLR)

Court of Appeal of Kenya
8 May 2009
SBS. E. O. BosireJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
1,744 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a written sale agreement for 5 acres could not be stretched into a wider partnership claim through verbal evidence.

What this practically means

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Executive summary

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The appellant sued the respondent seeking declarations that they were equal partners in one share of Ekerubo Farmers Co-operative Society and that he was entitled to 23.5 acres being half of plot No. Ekerubo/54, plus an injunction. The suit was heard by a Commissioner of Assize (Birech, C.A.) who, by judgment dated 26th November 2002, found that the agreement of 23rd March 1978 was nothing more than the purchase of five acres out of ten, and dismissed the suit with costs. The appellant appealed on four grounds, contending that the agreement was a partnership in the respondent's share in the society, that the trial court ignored unchallenged evidence on the value of a society share, and that the decision was against the weight of evidence. The Court of Appeal (Bosire, Onyango Otieno and Aganyanya, JJA), as a first appellate court, re-evaluated the evidence applying Selle v Associated Motor Boat Company Ltd. It held that paragraphs 1 and 6 of the written agreement plainly confined the transaction to ten acres shared equally, and that the appellant's claim that it covered the respondent's 47-acre entitlement was an attempt to vary a written agreement by oral evidence, contrary to section 94 of the Evidence Act and the parol evidence rule drawn from Halsbury's Laws as adopted in Swiqippharm Ltd v Awuondo. The appeal was dismissed, with each party bearing his own costs of the appeal and of the superior court proceedings.

Key legal issues

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01

Scope of the 1978 agreement

Holding

The agreement was for the sale of 5 acres out of 10 acres, not a partnership in the respondent's entire entitlement from the co-operative society

Reasoning

Paragraph 1 of the agreement expressly referred to the landlord's plot of approximately ten acres divided into two halves of five acres each, and paragraph 6 required any modification to be by consent. No evidence showed the agreement was altered to tie it to the respondent's final allocation from the society, and the price of Kshs.18,000 was paid for the 5-acre share.

p. 3
02

Extrinsic evidence varying a written agreement

Holding

The appellant's claim that the agreement covered the respondent's 47-acre entitlement was an attempt to vary a written agreement by oral evidence, contrary to section 94 of the Evidence Act

Reasoning

The court, relying on Halsbury's Laws of England as adopted in Swiqippharm Ltd v Awuondo, held that once parties have reduced their intention to writing, extrinsic evidence cannot be received to prove an intention other than that appearing on the face of the document.

p. 3
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Duty of first appellate court

Holding

A first appellate court must re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing the witnesses

Reasoning

The court applied the classic statement in Selle v Associated Motor Boat Company Limited, re-evaluating the documentary and oral evidence before affirming the trial court's findings.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and reach its own independent conclusion, giving allowance for the fact that it did not see or hear the witnesses
  • Where the intention of parties has been reduced to writing, extrinsic evidence, whether oral or written, may not be adduced to contradict, vary or add to the terms of the document

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear his own costs of the appeal and of the proceedings in the superior court

Authorities

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Legislation

  • Land Control Actprovisions on voidability of transactions after three months
  • Co-operative Societies Actgenerally (application to non-members)
  • Evidence Actsection 94

Cases cited (2)

  • Selle v. Associated Motor Boat Company Limited
    [1968] E.A 123
  • Swiqippharm Ltd v. Awuondo & Another
    [2003] KLR 193
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 10 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the framework governing appeals from the High Court (the judgment does not state the specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "John Onyancha Zurwe v Oreti Atinda [2009] KECA 315 (KLR)", Case Analysis (2009). Civil Appeal 217 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/315/eng@2009-05-08

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