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Court of AppealDismissedCivil Appeal No. 96 of 2015· [2016] KECA 482 (KLR)

Hassan Musambayi Mbaruku v Nashon Aseka [2016] KECA 482 (KLR)

Court of Appeal of Kenya
27 May 2016
1,581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that land cases started before 2010 stayed valid in the High Court, and dismissed a seller's claims of unpaid price and fraud.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A) dismissed in its entirety the appellant's appeal against the judgment of Chitembwe, J. of the High Court at Kakamega delivered on 12th June 2015 in H.C.C.C. No. 123 of 1998. The appellant had sued the respondent seeking a declaration that non-completion of the purchase price of land parcel ISUKHA/SHIRERE/3245 was a fundamental breach rendering the sale null and void, and for rectification of the register, alleging that the respondent paid only Kshs.100,000/= of an agreed price and committed fraud in subdividing, transferring and registering the land. On appeal, the appellant additionally contended for the first time that the trial judge lacked jurisdiction because he was not a designated judge of the Environment and Land Court established under the Constitution of Kenya 2010. The Court held that jurisdiction, being an issue of law going to the root of a matter, can be raised for the first time on appeal, but that section 22 of the Sixth Schedule required proceedings pending at 27th August 2010 to continue before the same court; absent evidence of any Chief Justice directive to the contrary, Chitembwe, J. had jurisdiction. On the merits, the Court found the full purchase price of Kshs.160,000/= was paid, witnessed by DW2 and recorded in a memorandum signed by the parties, and that no fraud was proved, the appellant having himself obtained subdivision authority and signed the transfer voluntarily. Land Control Board consent was unnecessary since the land was within Kakamega Municipality and not agricultural. The appellant was ordered to bear the costs of the appeal.

Key legal issues

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01

Jurisdiction of the High Court over land cases pending at the commencement of the Constitution of Kenya, 2010

Holding

The trial judge had jurisdiction because the suit, filed in 1998, was pending before the High Court on 27th August 2010 and the transitional provisions required pending judicial proceedings to continue in the same court; no directive by the Chief Justice to cease such hearings was shown.

Reasoning

Article 162(2) required Parliament to establish courts with the status of the High Court for land and environment disputes, but the Environment and Land Court Act was only enacted in 2011. Section 22 of the Sixth Schedule provides that pending judicial proceedings continue in the same court. The appellant did not show any Chief Justice directive requiring Kakamega judges to stop hearing pre-2010 land cases, so there was no basis for finding the trial judge lacked jurisdiction.

p. 3
02

Whether the full purchase price of Kshs.160,000/= was paid

Holding

The respondent proved payment of the full purchase price, the balance of Kshs.60,000/= being witnessed by DW2 and recorded in a memorandum signed by the parties.

Reasoning

The appellant conceded receiving subsequent payments which he characterised only as 'friendly advances' without explaining the circumstances. DW2 witnessed the payment of the balance and a memorandum (D.Exh.3) was drawn and signed by the parties before two witnesses. The appellant never disputed the contents of that document or alleged forgery of his signature, leaving no doubt the balance was paid.

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03

Whether the appellant proved fraud against the respondent

Holding

No fraud was proved; the appellant himself obtained subdivision authority, signed the transfer voluntarily, and the land, being within Kakamega Municipality and not agricultural, required no Land Control Board consent.

Reasoning

It was the appellant who obtained authority from the Kakamega Municipality Physical Planner to subdivide, instructed Arch Surveys to prepare the mutation form, and signed the transfer in favour of the respondent. Having done so voluntarily, he could not allege fraudulent transfer. The suit land was within Kakamega Municipality and there was no evidence it was agricultural, so Land Control Board consent was not legally required.

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Legal principles established

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  • Jurisdiction is a question of law going to the root of a matter and may be raised for the first time on appeal
  • Without jurisdiction a court has no authority to act
  • Pending land proceedings at the promulgation of the Constitution of Kenya, 2010 continued to be heard by the High Court under the transitional provisions

Court orders

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  1. 1.Dismissal of the ground of appeal challenging the trial judge's jurisdiction
  2. 2.Dismissal of the ground of appeal that the full purchase price was not paid
  3. 3.Dismissal of the ground of appeal alleging fraud
  4. 4.Dismissal of the appeal in its entirety
  5. 5.Appellant to bear the costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Section 22 of the Sixth Schedule
  • Environment and Land Court Act
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 123 of 1998
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court; transitional jurisdiction under Article 162(2) of the Constitution and section 22 of the Sixth Schedule considered

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan Musambayi Mbaruku v Nashon Aseka [2016] KECA 482 (KLR)", Case Analysis (2016). Civil Appeal No. 96 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/482/eng@2016-05-27

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