Robert Walusekhe Wasakania v John Diang’a Obaso (Suing As Guardian Ad Litem of Samuel Awour Tongoi) [2019] KECA 794 (KLR)
The bottom line
#The Court of Appeal threw out a land sale claim because the seller's land was never officially subdivided, and buyers cannot force such unregistered sales through court.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof on the respondent's claim of illegality and undue influence
The trial judge erred by shifting the burden of proof to the appellant; the burden lay on the respondent who pleaded illegality and undue influence, and those allegations were not proved
The respondent pleaded that Tongoi was compelled to sign the agreement and that no consideration was paid. The respondent and his witnesses adduced no evidence on execution or payment. The appellant testified to execution, payment of Shs 404,000, and the Land Control Board application and consent, which the respondent did not refute. The trial judge's contrary findings rested on an evidential burden wrongly placed on the appellant.
Mental capacity of the vendor to contract
The respondent did not prove on a balance of probabilities that Tongoi suffered mental disability rendering him incapable of understanding the contract at the time of execution; the findings of incapacity and undue influence were set aside
The medical reports were made for the purposes of the dispute, bore a 2009 hospital number, and did not speak to Tongoi's mental state on 15th January, 2008. The evidence of illness was general. The appellant rebutted it with a power of attorney executed by Tongoi in 2009 in favour of the respondent, letters written by Tongoi in April 2008 concerning the sale, and testimony that Tongoi was in his normal senses.
Enforceability of the agreement for specific performance
The agreement was not valid and not enforceable by specific performance because the sub-division of parcel No. 467 was never registered, its register never closed, and the purchase price was stated to be negotiable
The disputed agreement related to 7.4 acres, part of parcel No. 467. Under the Registered Land Act (now repealed) and the Land Registration Act, a division of land takes effect by closing the register of the parent parcel and opening new registers, and no part of registered land may be transferred before sub-division and opening of new registers. Since the sub-division was unregistered and the register of parcel No. 467 remained open, the agreement could not be enforced. The price being 'negotiable' also meant no final price was agreed.
Right to recover the part-payment of the purchase price
The invalidity of the agreement does not bar the appellant from recovering the part of the purchase price paid or pursuing other claims, but such claims were not pleaded in the counter-claim and cannot be considered on appeal
The court found as a fact that the agreement was executed and that Shs 404,000 was paid. Although the agreement is unenforceable, the appellant is not without remedy; however, a claim for refund was never made in the counter-claim, and an appellate court cannot entertain claims not pleaded or adjudicated below.
Legal principles established
#- The burden of proving that a vendor lacked mental capacity to contract, and that the other party knew or ought to have known of the disability, lies on the party alleging incapacity
- A first appellate court may set aside trial findings not supported by evidence, but a part of land cannot be transferred unless the proprietor has first subdivided the land and new registers have been opened
Court orders
#- 1.The findings of the trial judge that the agreement was executed under undue influence, that Tongoi lacked capacity, and that the agreement was not executed or paid for, are set aside
- 2.The appeal is dismissed
- 3.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Kitale, Environment and Land Court
- E & L Suit No. 84 of 2012
- Jurisdiction invoked
- First appellate appeal from the High Court (Environment and Land Court) under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Walusekhe Wasakania v John Diang’a Obaso (Suing As Guardian Ad Litem of Samuel Awour Tongoi) [2019] KECA 794 (KLR)", Case Analysis (2019). Civil Appeal No. 55 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/794/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.