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Court of AppealDismissedCivil Appeal No. 262 of 2019· [2021] KECA 1035 (KLR)

Ogla Jemeli Barng’etuny v Shirji Naran Virji [2021] KECA 1035 (KLR)

Court of Appeal
29 January 2021
3,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed the forced sale of Eldoret land after finding the seller's forgery claims unproven and the buyer's payment fully evidenced.

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 Eldoret (Ombwayo, J.) delivered on 29th August 2019, which ordered her to specifically perform a land sale agreement dated 28th May 2011 by transferring Title Number Eldoret Municipality Block 13/886 to the respondent, and permanently restrained her from interfering with the respondent's title. The respondent had purchased half an acre out of Block 13/530 for Kshs.3,500,000.00; the appellant denied executing the agreement, alleging forgery, and counterclaimed for declarations of ownership. The Court of Appeal framed the main issue as whether the trial Judge's conclusions on execution of the agreement, payment of the purchase price and breach were supported by evidence. Applying the principles governing first appeals, including Selle vs. Associated Motor Board Co. Ltd and Jabane vs. Olenja, the Court reviewed and re-evaluated the evidence. It upheld the trial Judge's discrediting of the expert opinions of both document examiners, noting deficiencies in the materials each relied on. The Court found the respondent's evidence overwhelming: the advocate who prepared and attested the agreement testified firmly, execution was witnessed by the appellant's brother and husband, and payment was demonstrated through vouchers, cheques and acknowledgments signed by the appellant. The appellant offered no evidence for her claim that deposits into her account were borrowed money. The Court affirmed the judgment, held the counterclaim to have failed with the dismissal of the appeal, and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the trial court's finding that the appellant executed the sale agreement and received the purchase price was supported by evidence

Holding

The finding was amply supported by the testimony of the advocate who prepared and witnessed the agreement, the witnesses to its execution, the payment vouchers, and the evidence of payment, which the appellate court would not disturb

Reasoning

The advocate who prepared the agreement was categorical that the parties executed it in his presence and his testimony was unshaken on cross-examination. The respondent demonstrated payment of the entire purchase price even though the agreed mode of payment was not strictly followed. The appellant offered no evidence to support her claim that money paid into her account was a loan from her father.

p. 4
02

The weight to be given to conflicting expert opinions on disputed signatures

Holding

The trial Judge was entitled to discredit both document examiners' opinions; one examined photocopies without proper specimen signatures, and the court-appointed examiner failed to consider national identity cards and known signatures

Reasoning

The first examiner worked from photocopies with specimen signatures taken in his absence, casting doubt on their authenticity. The court-appointed examiner did not consider the national identity cards, specimen signatures or known signatures of the appellant and her husband, reducing the probative value of his report. With the expert opinions discredited, the court was left to assess the credibility of the fact witnesses, which favoured the respondent.

p. 3
03

Whether the appellant's counterclaim required separate determination

Holding

The counterclaim necessarily failed once the respondent's case was proved to the required standard

Reasoning

The appellant's counterclaim sought dismissal of the respondent's suit and declarations that the properties belonged to her. Since the appellate court found no basis for interfering with the trial Judge's judgment upholding the sale agreement and payment, the counterclaim for declarations fell with it. The appeal therefore did not fail for want of determination of the counterclaim.

p. 4

Legal principles established

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  • On a first appeal, the Court must re-evaluate the evidence and draw its own conclusions while making allowance for the trial court's advantage of seeing and assessing witnesses' demeanor and credibility
  • An appellate court will interfere with a finding of fact only where the finding is not based on evidence, is based on misapprehension of the evidence, or the judge demonstrably acted on a wrong principle
  • An appellate court should not interfere with findings based on the credibility of witnesses unless no reasonable tribunal could have made such findings or there existed errors of law

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the Environment and Land Court compelling specific performance of the sale agreement and transfer of Title Number Eldoret Municipality Block 13/886 to the respondent is upheld

Authorities

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Cases cited (4)

  • Selle & Another vs. Associated Motor Board Co. Ltd
    (1968) EA 123
  • Jabane vs. Olenja
    (1968) KLR 661
  • Joseph Kariuki Ndungu & another vs. Republic
    [2010] eKLR (Criminal Appeal Nos. 183 & 188 of 2006)
  • R vs. Oyier
    [1985] KLR 353
On appeal from
Environment and Land Court at Eldoret
Eldoret ELC Case No. 157 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164) over the Environment and Land Court

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, "Ogla Jemeli Barng’etuny v Shirji Naran Virji [2021] KECA 1035 (KLR)", Case Analysis (2021). Civil Appeal No. 262 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1035/eng@2021-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.