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ELCDismissedELC Appeal 11 of 2016· [2018] KEELC 4044 (KLR)

Omar Guled v Sahal Alaso & another [2018] KEELC 4044 (KLR)

Environment and Land Court
8 March 2018
2,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land profit-sharing claim because the oral agreement was never put in writing as the law requires.

What this practically means

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Executive summary

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The appellant appealed to the Environment and Land Court at Kakamega against the judgment of D. Ogal – RM delivered on 5th November 2014 in Kakamega CMCC No. 480 of 2013, which dismissed his claim. In the lower court the appellant, acting as plaintiff, sought payment of income due to him from the management of property known as Kakamega/Block 1/88 and to be allowed to participate actively in its management. He testified that with the respondents, who are his cousins, he had rehabilitated the property under an arrangement with the registered owner, Abdi Said Musa, under which the three were to make annual payments of Ksh. 1,260,000 and share the remaining profits. The respondents denied the arrangement; the 1st respondent relied on a lease agreement executed with Mohammed Ismail before an advocate, together with a certificate of lease and a power of attorney. The magistrate dismissed the suit because the arrangement offended section 3(3) of the Law of Contract Act, holding it amounted to a disposition of an interest in land and, being unwritten, was bad in law. On appeal, the appellant argued the arrangement was a management/agency arrangement, not a disposition, and that the magistrate erred on registration of the lease and in failing to determine other issues. The 1st respondent maintained the claim offended section 3(3) and that the court was bound by the pleadings. Matheka J applied Mwanasokoni v Kenya Bus Service on the appellate court's duty to re-evaluate evidence while not ordinarily interfering with trial court findings of fact. The court found the appellant admitted he kept no receipts and was not party to the lease, and held the claim was a disposition of an interest in land offending section 3(3). The appeal was dismissed with costs to be met by the appellant.

Key legal issues

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01

Whether the arrangement between the appellant and the respondents amounted to a disposition of an interest in land within section 3(3) of the Law of Contract Act

Holding

The claim was based on a disposition of an interest in land, not a mere management contract, and being oral it offended section 3(3) of the Law of Contract Act

Reasoning

The court held that a contract on disposition of an interest in land must be in writing, signed by both parties and attested by a witness. The appellant produced no written agreement and alleged the arrangement was oral, with no attesting witness. The lower court's ratio was that the arrangement amounted to a disposition of an interest in land and had to be in writing. Disposition includes a transfer, and transfer includes a lease. The appellant's failure to reduce the arrangement to writing rendered the suit bad in law.

p. 2
02

The standard for appellate interference with findings of fact of the trial court

Holding

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

Reasoning

Relying on Mwanasokoni v Kenya Bus Service, the court affirmed its duty to revisit and evaluate the evidence on record and reach its own decision, while appreciating that an appellate court will not ordinarily interfere with findings of fact unless they were based on no evidence at all, on misapprehension of the evidence, or the trial court acted on wrong principles. The court found the decision was judiciously arrived at based on cogent evidence.

p. 3
03

Whether the magistrate erred in finding the lease agreement (DEx1) was registered under the repealed Registered Land Act

Holding

The finding was not disturbed; the court upheld the dismissal of the appeal and did not find the trial court's conclusion on registration to warrant interference

Reasoning

The appellant argued the lease was not registered and that the magistrate needed more concrete materials to hold it registered. However, the court noted the appellant admitted he was not party to the lease, and the 1st respondent submitted the validity of the lease and power of attorney were not subject of the suit. The court did not disturb the trial court's judgment on this ground, finding the decision judiciously arrived at.

p. 3

Legal principles established

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  • An appellate court is duty bound to revisit the evidence on record, evaluate it and reach its own decision, but will not ordinarily interfere with the findings of fact of the trial court unless they were based on no evidence, on a misapprehension of the evidence, or the court acted on wrong principles

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The appellant is to meet the costs of the appeal

Authorities

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Legislation

  • Law of Contract ActSection 3(3), including 3(3)(a)(i)
  • Registered Land Act (Repealed)null

Cases cited (1)

  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Chief Magistrate's Court, Kakamega
Kakamega CMCC No. 480 of 2013
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act (appeal against judgment of Resident Magistrate in Kakamega CMCC No. 480 of 2013)

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, "Omar Guled v Sahal Alaso & another [2018] KEELC 4044 (KLR)", Case Analysis (2018). ELC Appeal 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4044/eng@2018-03-08

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