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Court of AppealPartially AllowedCivil Appeal No. 55 of 2016

Robert Walusekhe Wasakania v John Diang’a Obaso (Suing As Guardian Ad Litem of Samuel Awour Tongoi) [2019] KECA 794 (KLR)

Court of Appeal of Kenya
4 April 2019
2,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant appealed against a judgment of the Environment and Land Court at Kitale (E. Obaga, J.) which declared a sale agreement dated 15th January, 2008 between Samuel Awour Tongoi (vendor) and the appellant (purchaser) illegal, null and void, and dismissed the appellant's counter-claim for specific performance of the sale of 7.4 acres out of parcel Sinyerere/Kipsaina Block 2/Kesogon/467. The respondent, appointed guardian ad litem of Tongoi under the Mental Health Act, alleged the appellant exploited Tongoi's mental condition and tribal clashes to secure his signature to the agreement. The Court of Appeal, in a single judgment of the court delivered by Githinji, Okwengu and Mohammed, JJ.A., allowed most of the appellant's grounds: it held the trial judge shifted the burden of proof onto the appellant; found as facts that the agreement was executed by both parties, that Shs 404,000 of the purchase price was paid, and that the Land Control Board consent was applied for and obtained; and held that the respondent failed to prove on a balance of probabilities that Tongoi lacked contractual capacity, the medical evidence being general and prepared for the dispute, and being rebutted by a power of attorney, contemporaneous letters and eyewitness testimony. The findings of undue influence and incapacity were set aside. However, the appeal was ultimately dismissed on enforceability: the sub-division of parcel No. 467 was never registered and its register never closed, so under the Registered Land Act and Land Registration Act no part of the land could be transferred, and the purchase price being 'negotiable' meant no concluded price was agreed; specific performance was therefore unavailable. The court noted the appellant could pursue refund of the part-payment, but that claim was not pleaded. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Burden of proof on the respondent's claim of illegality and undue influence

Holding

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

Reasoning

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.

p. 2
02

Mental capacity of the vendor to contract

Holding

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

Reasoning

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.

p. 3
03

Enforceability of the agreement for specific performance

Holding

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

Reasoning

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.

p. 4
04

Right to recover the part-payment of the purchase price

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The appeal is dismissed
  3. 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

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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, "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.