Bhimji Parbat Dhanji Kerai v Stephen Njoroge Mbonoh [2019] KECA 967 (KLR)
The bottom line
#The Court of Appeal dismissed a Kshs. 12 million land refund claim because the buyer couldn't prove his payments, and his oral land deal was legally invalid.
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 trial judge properly considered the burden of proof and properly directed himself in regard to matters for consideration in arriving at his conclusion
Key legal issues
#Duty of a first appellate court
The court re-evaluated the entire evidence afresh and reached its own independent conclusions, while allowing for the trial court's advantage of observing witnesses.
Guided by Susan Munyi v Keshar Shiani, the court restated that a first appellate court must analyze, evaluate, assess, weigh, interrogate and scrutinize all evidence and arrive at its own independent conclusion, though mindful that it works from the cold record rather than live observation of witnesses. This framed the court's approach to the entire appeal.
Status of a witness statement not adopted in evidence
A statement filed under Order 3 Rule 2(c) is not evidence unless adopted or vouched for by sworn testimony, and the trial judge was right to ignore it.
Order 3 Rule 2(c) statements serve to give prior notice of the evidence a plaintiff intends to rely on; under Order 18 Rule 2(1) and Order 19 Rule 1, the plaintiff must prove the case by oral or affidavit evidence. Because the appellant never referred to or adopted his filed statement in his testimony, its truth was not vouched for and the judge properly disregarded it.
Proof of payment under the written agreement for Block 10/198
Only payment of Kshs. 1,000,000/= was established; the alleged payment of the Kshs. 3,500,000/= balance was not proved.
Although the respondent admitted the written agreement and receipt of Kshs. 1,000,000/=, the only evidence of further payment was a petty cash voucher whose signature was not proved, with no evidence of how the remaining Kshs. 1,700,000/= was paid. The court also noted the absence of due diligence in the conveyancing process, no report of a criminal complaint over the alleged fake title, and no counterclaim by the respondent for the outstanding balance.
Claim based on the alleged oral agreement for Block 11/151, 152 and 153
The claim on the oral agreement fails: it was not substantiated and was barred by section 3(3) of the Law of Contract Act.
There was no evidence the respondent owned or held beneficial interests in the three parcels, and the appellant's pleaded figures were internally inconsistent with the sums claimed. Further, section 3(3) of the Law of Contract Act requires contracts for the disposition of an interest in land to be written, signed by all parties, and attested by a witness; an oral agreement unsupported by such documentation cannot ground a suit.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate the whole evidence and reach its own conclusions, while bearing in mind that the trial court had the advantage of observing the witnesses.
- A statement filed under Order 3 Rule 2(c) of the Civil Procedure Rules is not evidence unless adopted or vouched for by the maker's sworn testimony at trial.
- No suit may be brought on an oral contract for the disposition of an interest in land, as section 3(3) of the Law of Contract Act requires the contract to be in writing, signed by all parties and attested by a witness.
- The burden of proof rests on the person who asserts facts on which a court is asked to found a judgment on a legal right or liability.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- HCCC No. 4 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory appellate powers over High Court decisions
Relief refused
#Setting aside the High Court judgment and recovery of Kshs. 12,065,000/= as pleaded in the plaint
The appellant failed to discharge the burden of proof; payment of the balance beyond Kshs. 1,000,000/= was not proved, and the claim on the oral agreement was barred by section 3(3) of the Law of Contract Act
Costs
Appeal dismissed with costs to the 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.
We uphold the judgment of the trial court and dismiss this appeal with costs to the respondent.
Those shall be the orders of this Court.
The appellant not having made reference to the statements, the truth of that statement could not be vouched for, and the learned judge was right in ignoring the same.
No suit shall be brought upon a contract for the disposition of an interest in land unless (a) the contract upon which the suit is founded – (i) is in writing; (ii) is signed by all the parties thereto;
We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all the evidence and arrive at our own independent conclusion.
Issues in the judgment
#The coram lists the appeal as heard at Eldoret, but the decision appealed from was delivered at Kitale; the internal reference to the High Court judge as 'the trial judge of the first appellate court' is potentially confusing as to which court is being described at various points.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kipchumba (Suing as the legal representative of the Estate of Chepkieny Sibo - Deceased) v Catholic Diocese of Eldoret (Registered Trustee) & 2 others (Environment and Land Appeal E013 of 2024) [2025] KEELC 7346 (KLR)[2025] KEELC 7346 (KLR)16 Oct 2025
- Ethics and Anti-Corruption Commission v James Makura M’abira [2020] KECA 500 (KLR)[2020] KECA 500 (KLR)24 Jul 2020
Cite this brief
#Cite this brief
Caselaw, "Bhimji Parbat Dhanji Kerai v Stephen Njoroge Mbonoh [2019] KECA 967 (KLR)", Case Analysis (2019). Civil Appeal No. 66 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/967/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.