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ELCPartially AllowedCivil Appeal (originally filed in the High Court on 12th October 2012, transferred to this Court on 19th September 2017)· [2018] KEELC 3975 (KLR)

Monica Wambui Kangangi & 2 others v George Maina Mugo [2018] KEELC 3975 (KLR)

Environment and Land Court (transferred from the High Court by L. Gitari J on account of jurisdiction)
14 March 2018
3,492 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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A Kenyan court ordered sellers to refund Ksh. 750,000 for land they could not legally sell, but refused the buyer's 30% penalty interest because the sale itself was void.

What this practically means

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Executive summary

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The Respondent, acting in person, had sued the Appellants in Kerugoya Senior Resident Magistrate's Court Civil Suit No. 57 of 2010 for a refund of Ksh. 750,000 plus 30% interest per annum under a sale agreement dated 24th November 2009 for plot No. 50 Kagumo. The trial magistrate found the Appellants received the purchase price and ordered a refund with 30% interest and costs. On appeal, the Appellants contended the judgment was against the weight of evidence, that the magistrate disregarded the advocate's evidence, and that they signed the agreement under misrepresentation, invoking non est factum. The Respondent, though served by substituted service, did not participate in the appeal. B.N. Olao J, on a first appeal, reappraised the evidence and held that the trial magistrate, having seen and heard the witnesses, was best placed to assess credibility and was entitled to prefer the evidence of the Respondent and the advocate's clerk over that of the Appellants and the advocate, who admitted he was absent when the agreement was executed and the money paid. The plea of non est factum failed because the agreement was explained to the Appellates in Kikuyu. However, the court found the suit plot belonged to the estates of deceased persons, succession had not been done, and the Appellants lacked capacity to transfer it; the agreement was therefore null and void and could not be breached. The appeal was dismissed but the trial judgment varied: judgment entered for the Respondent for Ksh. 750,000 with costs and interest at Court rates, the 30% contractual interest being set aside.

Key legal issues

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01

Standard of interference with trial court's findings of fact on first appeal

Holding

The first appellate court must re-examine and evaluate the evidence but will not interfere with the trial court's findings of fact unless they are based on no evidence, a misapprehension of it, or wrong principles

Reasoning

The judge acknowledged the duty of a first appellate court to re-evaluate the evidence while making allowance for not having seen or heard the witnesses. Applying Selle v Associated Motor Boat Co and Peters v Sunday Post, he found the trial magistrate, who saw and heard the witnesses, was best placed to judge credibility and had correctly found the Appellants' denials to be mere denials.

p. 2
02

Plea of non est factum

Holding

The plea fails where the agreement was read over and explained to the parties in Kikuyu and they understood its contents

Reasoning

Counsel for the Appellants argued they signed as a result of misrepresentation as to the nature and character of the document, invoking Marvco Colour Research. The court held that the clerk David Kinyua explained the agreement to the parties in Kikuyu language, and the trial magistrate believed his evidence, so the Appellants could not claim they did not understand the contents of the agreement.

p. 4
03

Weight of an advocate's evidence vis-à-vis that of his clerk

Holding

An advocate's testimony is not to be taken as gospel truth; credibility, not professional class, determines reliability

Reasoning

Counsel argued it was absurd to disregard the evidence of DW4, an advocate of the High Court. The judge rejected the submission that a lawyer's word must be taken as gospel truth, noting professionals can give false testimony. In any event, the advocate admitted he was absent when the agreement was executed and the money paid, so nothing turned on his evidence.

p. 5
04

Entitlement to contractual interest on a void agreement

Holding

The 30% interest clause could not be enforced because the sale agreement was null and void, the suit plot belonging to deceased persons' estates and succession not having been done

Reasoning

The court found the Appellants intermeddled with the estates of the deceased owners and lacked capacity to transfer the plot, rendering the agreement null and void. Since a null and void agreement cannot be breached, ordering the 30% interest would enforce an illegal agreement, contrary to Mistry Amar Singh v Kulubya; only a refund of the Ksh. 750,000 was due.

p. 6

Legal principles established

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  • An appellate court will not interfere with findings of fact by the trial court unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles
  • A null and void contract cannot be breached, and a court cannot enforce an illegal agreement; but a defendant who has benefited from such a contract must refund what he received
  • The credibility of a witness, not his professional class, determines whose evidence carries the day

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The trial magistrate's judgment is varied only to the extent that judgment be entered for the Respondent for the sum of Ksh. 750,000
  3. 3.The Respondent is entitled to costs of the suit and interest at Court rates (the 30% per annum contractual interest set aside)

Authorities

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Cases cited (7)

  • SELLE & ANOTHER VS ASSOCIATED MOTOR BOAT CO. LTD & ANOTHER
    1968 E.A 123
  • PETERS VS SUNDAY POST LTD
    1958 E.A 424
  • KIRUGA VS KIRUGA & ANOTHER
    1988 K.L.R 348
  • MARVCO COLOUR RESEARCH LTD VS HARRIV
    1982 2 SCR 774
  • HEMED KASSIM HEMID VS FATUMA SHEIKH ADDALLA
    2014 e K.L.R
  • SULEIMAN RAHEMTULLA OMAR & ANOTHER VS MUSA HERSI FAHIYE & OTHERS
    C.A CIVIL APPEAL No. 245 of 2011 (2014 e K.L.R)
  • MISTRY AMAR SINGH VS KULUBYA
    1963 E.A 408
On appeal from
Senior Resident Magistrate's Court, Kerugoya
Civil Suit No. 57 of 2010
Jurisdiction invoked
First appeal transferred from the High Court to this Court on account of jurisdiction by L. Gitari J on 19th September 2017

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, "Monica Wambui Kangangi & 2 others v George Maina Mugo [2018] KEELC 3975 (KLR)", Case Analysis (2018). Civil Appeal (originally filed in the High Court on 12th October 2012, transferred to this Court on 19th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3975/eng@2018-03-14

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