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Court of AppealDismissedCivil Appeal No. 255 of 2011

Joel Mbataru Kanyoko v Lucy Wambui Mbataru & another [2019] KECA 778 (KLR)

Court of Appeal of Kenya
8 March 2019
5,394 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Court of Appeal judgment at Nairobi (Waki, Asike-Makhandia and Murgor, JJ.A) dismissed the appellant Joel Mbataru Kanyoko's appeal against Lucy Wambui Mbataru, affirming the High Court judgment of Aganyanya, J dated 11th February 2011. The dispute concerned LR No. 209/7383/205 (the Kimathi plot), which Joel transferred to his then wife Lucy in 1986 and which Lucy later sold and transferred to Larry Gregory Kiswili Ngutter (the deceased), who died during the appeal in 2012. Two grounds were urged: first, that the sale to the deceased was a nullity under section 52 of the Transfer of Property Act and the doctrine of lis pendens because of a caveat and an injunction; second, that the trial court failed properly to evaluate the evidence on whether the Joel-Lucy transaction was commercial or a sham family arrangement. The court first held that the appeal against the deceased had abated for want of substitution of his legal representative, foreclosing any challenge to the finding that he was an innocent purchaser for value; Joel's remedy, if any, lay in damages against Lucy. On the first ground, the court held that lis pendens and section 52 were never pleaded despite three amendments to the plaint, and a new point of law cannot be raised for the first time on appeal, citing Nyangau v Nyakwara, North Staffordshire Railway v Edge, IEBC v Mutinda Mule, Adetoun Oladeji and Raila Odinga v IEBC. On the second ground, the court found the trial court's finding that the transaction was purely commercial was amply supported by the evidence and credibility findings, and declined to interfere. 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 the appeal against the deceased second respondent had abated and what is the consequence of that abatement
  2. 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. 3.Whether the trial court properly evaluated the evidence, particularly on the transaction between Joel and Lucy

Key legal issues

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01

Whether the doctrine of lis pendens could be raised for the first time on appeal to nullify the sale to the deceased

Holding

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.

Reasoning

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.

p. 3
02

Whether the trial court properly evaluated the evidence on the Joel-Lucy transaction

Holding

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.

Reasoning

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.

p. 6
03

Effect of the abatement of the appeal against the deceased second respondent

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Order that the appeal against the deceased second respondent be marked as abated
  2. 2.Dismissal of the appeal against the 1st respondent with costs

The bench

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

majority
majority
majority
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

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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

p. 3

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

p. 6

Prayers directed at the Registrar of Titles

Counsel for the appellant withdrew those prayers at the hearing of the appeal

p. 2

Costs

The appeal against the 1st respondent was dismissed with costs to the 1st respondent

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.

It follows that the appeal against the 1st respondent has no merits and we order that it be and is hereby dismissed with costs.
p. 6Disposition - dismissal with costs
In general a litigant is precluded from taking a completely new point of law for the first time on appeal.
p. 3New points of law 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.
p. 3Effect of abatement on challenge to title
Allegations of fraud have been held to be of a serious nature and have to be specifically pleaded and proved.
p. 4Pleading and proof of fraud

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, "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.