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Court of AppealPartially AllowedCivil Appeal (Makueni ELC Appeal)

Munguti v Ndonye (Civil Appeal 454 of 2019) [2025] KECA 2114 (KLR)

Court of Appeal of Kenya
5 December 2025
2,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a land sale ruling but ordered a surveyor to precisely demarcate the sold portion on the ground.

What this practically means

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Executive summary

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The Court of Appeal (M'Inoti, Muchelule and Odunga, JJ.A) dismissed the substance of the appellant's first appeal against the judgment of the Environment & Land Court at Makueni (Mbogo, J.) dated 12th July 2019, which had held that the appellant was entitled to only a portion of Kibauni/Malunda/541, as identified by the respondent. Before trial, the parties had narrowed the sole issue to identification of the portion sold, there being agreement that a sale occurred and purchase price was paid. The Court held that the parties could not on appeal revisit issues they had dispensed with, such as whether the appellant bought the entire property or a portion. Applying the settled duty of a first appellate court to re-evaluate the evidence while deferring to the trial court's findings on credibility, the Court found no basis to disturb the ELC's preference for the respondent's evidence, noting material contradictions in the appellant's case, including his claim to have bought the entire property. The Court nonetheless identified one residual defect: uncertainty as to the exact portion on the ground. It therefore partially allowed the appeal only to the limited extent of remitting the matter to the ELC to ensure that the sold portion, as identified by the respondent, is demarcated on the ground by a qualified surveyor. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ELC disregarded the appellant's defence and evidence
  2. 2.Whether the ELC erred in holding that the portion of the suit property sold could not be identified with precision
  3. 3.Whether the ELC erred in holding that the appellant's evidence was contradictory
  4. 4.Whether the ELC erred in preferring the respondent's evidence as truthful

Key legal issues

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01

Scope of the first appellate court's duty on a first appeal

Holding

The Court re-evaluated the evidence but deferred to the trial court's credibility findings, finding no basis to disturb them.

Reasoning

A first appellate court must analyse and weigh all the evidence afresh and reach its own conclusions, but it operates under a handicap because it did not see or hear the witnesses. It therefore accords due respect to the trial court's factual findings, particularly on credibility, and interferes only where a misapprehension of facts or an overlooked piece of material evidence is demonstrated.

p. 5
02

Whether the ELC considered the appellant's defence and evidence

Holding

The ELC considered all the evidence; its conclusion that the appellant's case was contradictory presupposed consideration of that evidence.

Reasoning

The trial court considered the pleadings and all the evidence before accepting the respondent's case. The Court reasoned that the trial judge could not have concluded that the appellant's case was contradictory and unbelievable without having considered his defence and evidence, so the complaint of disregard failed.

p. 4
03

Remedy for uncertainty as to the demarcation of the sold portion

Holding

The only remaining defect was the uncertainty of the actual portion on the ground, cured by remitting the matter for demarcation by a qualified surveyor.

Reasoning

Although the Court upheld the ELC's determination that the appellant was entitled to the portion identified by the respondent, the exact boundary on the ground remained uncertain. Surveyor-led demarcation was the order best calculated to bring finality, so the matter was remitted to the ELC for that limited purpose.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate and reappraise the evidence while bearing in mind that it did not see or hear the witnesses.
  • An appellate court defers to the trial court's findings on witness credibility unless those findings are shown to be fanciful or manifestly wrong.
  • Parties are bound by the issues they agreed to narrow for trial and cannot on appeal revisit issues they had dispensed with.

Court orders

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  1. 1.The appeal succeeds only to the limited extent that the matter is remitted back to the ELC to ensure that the sold portion as identified by the respondent is demarcated on the ground
  2. 2.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment & Land Court at Makueni
ELC suit filed 15th December 2016 (Kibauni/Malunda/541)
Jurisdiction invoked
First appeal to the Court of Appeal from the Environment & Land Court

Relief refused

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The appellant's broader grounds of appeal, including the contention that the ELC disregarded his defence and evidence and erred on credibility

The Court found no basis for interfering with the ELC's conclusions on evidence and credibility; only the uncertainty of the demarcation on the ground required correction

p. 5

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an appeal court must accord due respect to the factual findings of the trial court and will be circumspect and slow to disturb them.
p. 5Deference to trial court credibility findings
the appellant's appeal succeeds only to the limited extent that this matter is remitted back to the ELC to ensure that the sold portion as identified by the respondent is demarcated on the ground; and
p. 6Final orders - limited success and remittal
Each party shall bear its own costs.
p. 6Costs order

Issues in the judgment

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minor

The coram listing as printed contains an apparent typographical error in the third judge's name, rendered 'G. v ODUNGA', which has been recorded as 'G. V Odunga'.

minor

The judgment records the sale price paid by the appellant as both Kshs 74,000 and Kshs 127,000 depending on the stage of the transaction; the pleadings also contain contradictory averments noted by the court itself.

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, "Munguti v Ndonye (Civil Appeal 454 of 2019) [2025] KECA 2114 (KLR)", Case Analysis (2025). Civil Appeal (Makueni ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2114/eng@2025-12-05

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