Chege (Represented by Apollos Mwangi Chege the personal representative) v Kibet & 2 others; Mwangi (Interested Party) (Civil Appeal 116 of 2015) [2023] KECA 932 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you can't use a missing Land Control Board consent, fifty years later, to escape a land deal you freely made and benefited from.
What this practically means
#Executive summary
#Key legal issues
#Effect of lack of Land Control Board consent on the lease
The estate of Apollos could not rely on section 6 of the Land Control Act to have the lease declared void and thereby claim prescriptive rights; Apollos had as much duty as the respondents to apply for consent and it would be unconscionable to hold otherwise fifty years later
The court adopted its recent reasoning in Aliaza v Saul, endorsing the approach in Macharia Mwangi Maina and Ole Tukai that the Land Control Act's public policy should not be twisted into a cloak for resiling from fully performed transactions. Kiage JA's concurring observations in Aliaza were quoted with approval: courts should not rubber-stamp fraud and dishonesty by rendering void agreements freely entered into and fully acted upon.
Adverse possession by a licensee
The appellant, having entered and remained on the land as a licensee of Apollos (himself a lessee), could only claim adverse possession from the determination of Apollos' suit in 2002 or his death in 2001, which was far short of the twelve years required
Relying on Kweyu v Omutut and Kimani Ruchine v Swift, the court held that adverse possession must be hostile, open, continuous and proved as a fact. The appellant conceded throughout that she entered with Apollos' permission; the dismissal of Apollos' claim in HCCC No 35 of 1997 also ended the rights of persons claiming under him. She did not plead or prove twelve years of adverse occupation in her own right.
Res judicata and estoppel
The appellant's defence was properly found to be res judicata and she was estopped, as the same issues and documents had been litigated in Kitale HCCC No 35 of 1997 where she testified in support of Apollos' claim
The court reviewed the appellant's inconsistent and shifting positions across the two suits - claiming purchase, then personal entitlement, then adverse possession, then government land - and found they cast serious doubt on her veracity. Her arguments could and should have been raised in the earlier suit; the trial court's conclusion in the wider sense of res judicata could not be faulted.
Mesne profits
The award of Kshs 8,000,000 in mesne profits was justified: the claim was pleaded and proved by a professional valuation, corroborated by the appellant's own evidence of leasing at Kshs 8,000 per acre
Mesne profits are recoverable by one wrongfully deprived of property for the period of wrongful holding. Paragraph 11 of the plaint pleaded the claim, and PW5's valuation report established rental value per acre. Contrary to the appellant's submission, the claim did not require proof as unpleaded special damages. The court found no basis to interfere with the trial court's computation.
Duty of a first appellate court
As a first appeal, the Court was obliged to re-evaluate the evidence and reach its own conclusions, bearing in mind it neither saw nor heard the witnesses
Citing the classic statement in Selle & Another v Associated Motor Boat Co Ltd, the court restated that an appeal by way of retrial requires the appellate court to reconsider and evaluate the evidence itself while making due allowance for not having observed the witnesses. The court applied this duty throughout its re-examination of the lease, adverse possession, res judicata and mesne profits issues.
Legal principles established
#- A party who bears equal responsibility for obtaining Land Control Board consent cannot rely on the absence of that consent under section 6 of the Land Control Act to resile from a transaction freely entered into and fully acted upon
- A licensee in occupation with permission cannot claim adverse possession until the permission is terminated or the true owner's rights are determined; possession hostile to the true owner must be proved as a fact
- On a first appeal, the appellate court is under a duty to re-evaluate the evidence and reach its own conclusions while making allowance for the fact that it did not see or hear the witnesses
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- Environment and Land Court (High Court), Kitale
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable statute; the judgment states: 'This is a first appeal. Accordingly, this Court is under a duty to re-evaluate the evidence before the trial court and reach its own conclusions'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege (Represented by Apollos Mwangi Chege the personal representative) v Kibet & 2 others; Mwangi (Interested Party) (Civil Appeal 116 of 2015) [2023] KECA 932 (KLR)", Case Analysis (2023). Civil Appeal No 116 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/932/eng@2023-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.