Joel Mbataru Kanyoko v Lucy Wambui Mbataru & another [2019] KECA 778 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a landowner's challenge because his argument was never pleaded earlier and his appeal against the buyer had abated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal against the deceased second respondent had abated and what is the consequence of that abatement
- 2.Whether the transaction between Lucy and the deceased was a nullity under section 52 of the Transfer of Property Act and the doctrine of lis pendens
- 3.Whether the trial court properly evaluated the evidence, particularly on the transaction between Joel and Lucy
Key legal issues
#Whether the doctrine of lis pendens could be raised for the first time on appeal to nullify the sale to the deceased
Rejected. The point was never pleaded despite three opportunities to amend, no issue was framed on it, and a litigant cannot raise a completely new point of law for the first time on appeal.
The court held that the trial judge could not be faulted for not deciding an unpleaded issue. It invoked the rule against new points on appeal, the principle that parties are bound by their pleadings, and the Supreme Court's pronouncement that in the absence of pleadings, evidence produced cannot be considered and issues arise only from pleadings.
Whether the trial court properly evaluated the evidence on the Joel-Lucy transaction
Affirmed. The trial court's finding that the transaction was purely commercial and not a family arrangement was amply supported, turning on credibility which the trial court was best placed to assess.
The court re-examined the evidence as a first appellate court and found no basis to depart from the trial court's findings. Joel's own admissions of deliberate falsehoods to obtain a loan made it untenable for the court to endorse his version; the trial court believed Lucy's evidence, which was corroborated by documents including the HFCK cheque of Kshs.194,530/35.
Effect of the abatement of the appeal against the deceased second respondent
The abatement foreclosed any challenge to the finding that the deceased was an innocent purchaser for value, and thus any challenge to his title; Joel could only be compensated in damages if he succeeded against Lucy.
The appellant knew of the deceased's death in 2012 but never applied to substitute his legal representative, so the appeal against him abated. Applying the principle that an abated suit ceases to exist in the eye of the law, the crucial finding in the deceased's favour could no longer be disturbed on appeal.
Legal principles established
#- An appellate court will not entertain a completely new point of law raised for the first time on appeal where it was not pleaded, framed as an issue, or argued in the court below
- Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded
- Allegations of fraud must be specifically pleaded and proved to a standard above mere balance of probability
- The effect of an abated suit is that it ceases to exist in the eye of the law, foreclosing any challenge dependent on the abated party's participation
Court orders
#- 1.Order that the appeal against the deceased second respondent be marked as abated
- 2.Dismissal of the appeal against the 1st respondent with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 511 of 2005
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal Rules (appeal as of right against the judgment and decree of the High Court)
Relief refused
#Nullification of the transfer to the deceased under the doctrine of lis pendens
No pleading was made on lis pendens or section 52 of the Transfer of Property Act despite three amendments to the plaint; a new point cannot be taken on appeal for the first time; and the challenge to the deceased's title was foreclosed by the abatement of the appeal against him
A declaration that the transfer to Lucy was a mere family arrangement conferring no transferable interest
The trial court's factual finding, based on credibility assessments after hearing the witnesses, was that the transaction was purely commercial; the appellate court found no reason to depart from that finding
Prayers directed at the Registrar of Titles
Counsel for the appellant withdrew those prayers at the hearing of the appeal
Costs
The appeal against the 1st respondent was dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows that the appeal against the 1st respondent has no merits and we order that it be and is hereby dismissed with costs.
In general a litigant is precluded from taking a completely new point of law for the first time on appeal.
By dint of the order of abatement, it is our view that any challenge to that finding and consequently to the title of the deceased is foreclosed.
Allegations of fraud have been held to be of a serious nature and have to be specifically pleaded and proved.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Mbataru Kanyoko v Lucy Wambui Mbataru & another [2019] KECA 778 (KLR)", Case Analysis (2019). Civil Appeal No. 255 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/778/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.