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Court of AppealPartially AllowedCivil Appeal (Nairobi)

King’oo v Mwangi (Civil Appeal 113 of 2015) [2019] KECA 734 (KLR)

Court of Appeal of Kenya
10 May 2019
PWP. N. WakiSKS. Gatembu KairuJOJ. Otieno-Odek
7,133 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 upheld a Karen land sale and the buyer's ownership, but scrapped a Ksh 3 million damages award because it was never proved.

What this practically means

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Executive summary

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This is a first appeal against the High Court's judgment of 13th March 2015 dismissing the appellant's claim to Nairobi LR No. 12661/28 in Karen and awarding the respondent Ksh. 3,000,000/= as damages for trespass. The appellant, whose appeal was prosecuted by administrators substituted after her death, denied executing the sale agreement of 24th October 1995, alleged fraud and forgery, claimed adverse possession, and challenged the payment of the Ksh. 3,000,000/= purchase price and the quantum of damages. The Court of Appeal, as a first appellate court, re-evaluated the evidence and upheld the trial judge's findings on nearly all grounds. It found credible the testimony of the joint advocate (DW1) and identified corroborative circumstances - the discharge of charge signed by Ruparel, the appellant's letter of 14th July 1997 authorizing release of funds for road repairs, and the respondent's knowledge of the charge - establishing due execution and payment. The Court held that expert handwriting evidence does not trump other evidence and that the judge properly rejected both conflicting opinions. On adverse possession, applying Wambugu v Njuguna, it held that mere possession for twelve years is insufficient; there must be dispossession or discontinuance of the registered owner's possession, and a vendor who never delivered possession cannot claim adversely. The presumption of regularity covered the missing Commissioner of Lands consent, unrebutted by the appellant. However, the Court varied the judgment by setting aside the Ksh. 3,000,000/= damages for trespass, which were arbitrary and unproved in quantum. Subject to that variation, the appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Kembi & Muhia Advocates had authority to act jointly for the vendor and purchaser in the sale transaction
  2. 2.Whether the trial judge erred in failing to accord Mr. Mark Sang a hearing
  3. 3.Whether the respondent proved payment of the purchase price of Ksh. 3,000,000/= and due execution of the sale agreement dated 24th October 1995
  4. 4.Whether the trial judge erred in rejecting the conflicting expert opinion evidence on the signature
  5. 5.Whether the respondent's claim was extinguished by limitation and whether the appellant established adverse possession
  6. 6.Whether the transfer was invalid for want of production of the Commissioner of Lands' consent to transfer
  7. 7.Whether the award of Ksh. 3,000,000/= as damages for trespass was sustainable

Key legal issues

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01

Authority of joint advocates and execution of the sale agreement

Holding

The trial judge did not err in finding Kembi & Muhia Advocates acted as joint advocates and that the sale agreement was duly executed.

Reasoning

The advocate DW1 gave credible testimony on preparing the agreement, receipt of the deposit, payment of Ksh. 150,000/= to Ruparel, and the appellant's letter of 14th July 1997 signed in his presence. Corroboration included the discharge of charge signed by Ruparel, the respondent's knowledge of the charge, and the appellant's own letter referring to the sale. Nothing impugned DW1's credibility.

p. 7
02

Failure to call or hear Mr. Mark Sang

Holding

A plaintiff decides which witnesses to call; the court had no obligation to call or hear a non-party witness.

Reasoning

It is the plaintiff who bears the burden of presenting her case and choosing witnesses. Mr. Sang was not a party to the suit, and if his evidence was crucial the appellant should have called him; failure to call an available witness may attract an adverse inference. Further, a purchaser can only take the title the vendor had - nemo dat quod non habet.

p. 7
03

Proof of payment of the purchase price

Holding

Payment was proved; once the respondent tendered corroborative evidence of performance, the evidentiary burden shifted to the appellant to rebut it.

Reasoning

The forwarding letter for bankers cheque No. 055385, the discharge of charge, the appellant's letter authorizing release of funds for road repairs, and the respondent's knowledge of the charge with Ruparel corroborated payment. The appellant gave bare denial and repudiation rather than rebuttal, and could have tendered her own bank statements.

p. 9
04

Rejection of conflicting expert handwriting evidence

Holding

The judge properly exercised discretion in rejecting both conflicting expert opinions and deciding on the other evidence.

Reasoning

Expert evidence does not trump all other evidence; where opinions conflict the judge should test them against all other evidence and may reject them entirely. Appellate interference with discretion requires a showing that it was exercised whimsically, capriciously or with regard to irrelevant factors, which was not demonstrated.

p. 10
05

Limitation and adverse possession

Holding

The adverse possession claim failed; mere possession by the claimant for twelve years is not enough.

Reasoning

Under Wambugu v Njuguna, adverse possession contemplates dispossession or discontinuance of the title holder's possession, openly and by claim of right. There was no evidence the respondent was dispossessed or discontinued possession; the appellant as vendor never delivered possession, and a vendor cannot refuse vacant possession then claim adverse possession.

p. 11
06

Missing consent to transfer by the Commissioner of Lands

Holding

The presumption of regularity of official acts applied, and the appellant produced no evidence to rebut it.

Reasoning

All official acts are presumed done in proper form (omnia praesumuntur rite et solemniter esse acta). The deed file was missing at the lands office and the shortcomings of the registry cannot be visited on a party; the evidentiary burden lay on the appellant to rebut the presumption, which she failed to discharge.

p. 12
07

Damages for trespass of Ksh. 3,000,000/=

Holding

The award was arbitrary and set aside because neither the judge explained the quantum nor did the respondent lead evidence on the measure of damages.

Reasoning

Although trespass is actionable per se, the quantum must be proved; a claimant must place evidence before the court on the measure of mesne profits. The trial judge gave no explanation of how she arrived at Ksh. 3,000,000/=, making the sum arbitrary with neither factual nor legal foundation, obliging this Court to set it aside.

p. 12

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand, while giving great weight to the trial judge's findings on credibility.
  • Expert evidence does not trump all other evidence; where expert opinions conflict, the court may reject them entirely and decide on the other evidence, and an appellate court will not interfere with that exercise of discretion absent whim or caprice.
  • Adverse possession requires proof of dispossession or discontinuance of the title holder's possession for the statutory period, not merely the claimant's own possession for twelve years.
  • A vendor who never delivered vacant possession to the purchaser cannot claim adverse possession against that purchaser.
  • Official acts enjoy a presumption of regularity; the party asserting irregularity bears the evidentiary burden of rebutting it.
  • Although trespass to land is actionable per se, the quantum of damages for trespass must be proved; an unexplained, arbitrary award must be set aside.
  • Once a party tenders evidence of performance of a contract, the evidentiary burden shifts to the other party to rebut (not merely repudiate) performance; bare denial and repudiation of the agreement altogether excludes an assertion of non-performance of its terms.

Court orders

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  1. 1.Vary the judgment of the trial court and set aside the award of Ksh. 3,000,000/= as general damages for trespass in favour of the respondent
  2. 2.Subject to that variation, uphold the judgment of the High Court dated 13th March 2015
  3. 3.Dismiss the appeal with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
SK
majority
JO
majority
On appeal from
High Court
Jurisdiction invoked
First appellate jurisdiction over the High Court (re-evaluation of evidence and law as a first appellate court)

Relief refused

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Finding that the respondent did not purchase the suit property or that the sale agreement was not executed by the vendors

Sufficient corroborative evidence established due execution of the sale agreement and payment of the purchase price

p. 9

Claim for adverse possession

No dispossession or discontinuance of the registered owner's possession was proved; a vendor in possession cannot claim adverse possession against the purchaser

p. 11

Nullification of the transfer for want of the Commissioner of Lands' consent

The presumption of regularity applied and the appellant led no evidence to rebut it

p. 12

Costs

This appeal has no merit and is hereby dismissed with costs (the damages award of Ksh. 3,000,000/= having been set aside).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we remind ourselves of our primary role as a first appellate court namely to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the trial judge are to stand or not
p. 6Duty of a first appellate court
adverse possession contemplates two concepts: dispossession and discontinuance of possession and the proper way of assessing proof of adverse possession is whether or not the title holder has been dispossessed or has discontinued his possession for the statutory period
p. 11Essence of adverse possession
A vendor cannot fail to give vacant possession and thereafter claim for ownership of the same land through adverse possession.
p. 3Vendor's claim to adverse possession
Although trespass to land is actionable per se, the quantum or measure of damages for trespass must be proved.
p. 12Proof of quantum in trespass
Subject to variation of the judgment setting aside of the award of Ksh. 3,000,000/= as general damages for trespass in favour of the respondent, we uphold the judgment of the High Court date 13th March 2015. This appeal has no merit and is hereby dismissed with costs.
p. 13Disposition - final orders

Issues in the judgment

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minor

Internal inconsistency: the suit property is identified as Nairobi LR No. 12661/27, but the sale documents and correspondence refer to LR No. 12661/28.

minor

Internal inconsistency: the sale agreement is dated 24th October 1995, but the judgment later refers to “the sale agreement dated 24th October 1997”.

minor

Internal inconsistency: paragraph 2 states the adjoining property is “Nairobi LR No. 12661/27”, the same number as the suit property, presumably meaning 12661/28.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "King’oo v Mwangi (Civil Appeal 113 of 2015) [2019] KECA 734 (KLR)", Case Analysis (2019). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/734/eng@2019-05-10

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