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Court of AppealDismissedCivil Appeal No. 94 of 2009· [2013] KECA 29 (KLR)

Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 others [2013] KECA 29 (KLR)

Court of Appeal of Kenya
6 June 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,576 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a woman's land claim because she never proved she took possession or that fraud occurred.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJ.A.) dismissing the appellant's appeal against the High Court's dismissal of her suit seeking declarations that parcel Inoi/Kerugoya/19A belonged to her, that the sale by the 1st and 2nd respondents to the 3rd respondent was fraudulent and void, and rectification of the register. The High Court (Makhandia, J.) had dismissed the suit, holding that the appellant's cause of action arising from an oral agreement could not be sustained under Section 3(3) of the Law of Contract Act, that the property was vacant when the 3rd respondent bought it, and that his first registration could not be defeated. On appeal, the Court held that the learned judge misdirected himself in subjecting the 1989 oral agreement to the amended Section 3(3), which only commenced on 1st June 2003; the agreement predated the Act and fell under Section 3(7). However, under the proviso to the pre-amendment provision, the appellant still had to prove part performance by taking possession. On fresh and exhaustive scrutiny of the evidence, the Court concurred with the trial judge that the appellant failed to prove possession: the 3rd respondent's unrebuted evidence was that her building materials stood on the adjacent parcel Inoi/Kerugoya/286, and her own evidence showed the suit property was leased to a mechanic, hence vacant when he purchased it. The Court also rejected the submission that fraud was proved merely because the 1st and 2nd respondents did not testify, reiterating that fraud must be strictly proved above the balance of probabilities and that pleading is not proof. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Temporal application of Section 3(3) of the Law of Contract Act to pre-commencement oral contracts for land

Holding

The learned judge misdirected himself in subjecting the 1989 oral agreement to the amended Section 3(3), which commenced on 1st June 2003; the agreement predated the Act and falls under Section 3(7).

Reasoning

Section 3(7) of the Law of Contract Act excludes the application of Section 3(3) to contracts made before the commencement of the subsection. The current Section 3(3) commenced on 1st June 2003. The appellant's oral agreement was concluded in 1989, so it was not subject to the writing requirement, though the proviso to the pre-amendment Section 3(3) still required part performance by taking possession.

p. 4
02

Whether the appellant proved possession of the suit property in part performance of the oral contract

Holding

The appellant failed to prove possession; the claim could not be sustained on the oral contract.

Reasoning

Having re-evaluated the evidence, the Court concurred with the trial judge that the appellant did not prove possession. The 3rd respondent pleaded and testified that the appellant's building materials were on parcel Inoi/Kerugoya/286, adjacent to the suit property, and the appellant produced no evidence to rebut that. The appellant's own evidence that the 3rd respondent had leased the suit property to a mechanic for a long time showed the property was vacant when he bought it.

p. 4
03

Whether the appellant proved the pleaded particulars of fraud

Holding

The appellant did not prove fraud on the part of the respondents.

Reasoning

It was not enough to plead fraud; the appellant had to tender evidence proving the particulars to the satisfaction of the trial court. Fraud must be strictly proved to a standard above the balance of probabilities, and whether there is any evidence to support an allegation of fraud is a question of fact. The failure of the 1st and 2nd respondents to give evidence did not discharge the appellant's burden of proof.

p. 5

Legal principles established

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  • An oral agreement for the disposition of an interest in land concluded before the commencement of the amended Section 3(3) of the Law of Contract Act is not subject to that subsection, but a party relying on it must still prove the statutory exception by evidence of part performance through possession.
  • On a first appeal, the Court of Appeal is duty-bound to subject the evidence tendered before the trial court to a fresh and exhaustive scrutiny and draw its own conclusions, while giving due allowance for the fact that it did not see or hear the witnesses.
  • Allegations of fraud must be strictly proved to a standard above a mere balance of probabilities, though short of proof beyond reasonable doubt.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondents

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Law of Contract ActSection 3(7)
  • Registered Land Act, Chapter 300, Laws of Kenya (repealed)Sections 27 and 28

Cases cited (3)

  • Selle vs. Associated Motor Boat Company
    (1968) E.A. 123
  • R. G. Patel vs. Lalji Makani
    (1957) E.A. 314
  • Mutsonga vs. Nyati
    (1984) KLR 425
On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 182 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (Constitution of Kenya, 2010, Article 164)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 others [2013] KECA 29 (KLR)", Case Analysis (2013). Civil Appeal No. 94 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/29/eng@2013-06-06

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