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ELCDismissedELCA Case No. 28 of 2017· [2019] KEELC 4150 (KLR)

Benedict Muyula Pombo v Susan Were Makokha [2019] KEELC 4150 (KLR)

Environment and Land Court
19 March 2019
NMN.A. Matheka
1,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land buyer who didn't physically verify the size of the property before purchase lost his appeal and must pay the seller's costs.

What this practically means

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Executive summary

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The appellant, who had been the plaintiff in Kakamega Chief Magistrate's Court Civil Suit No. 124 of 2009, appealed against the judgment of Hon. J.M. Githaiga, Principal Magistrate, delivered on 5 July 2011. His claim in the trial court had been for specific performance, refund of excess purchase price and surrender of the original title to LR No. Butsotso/Esumeyia/2351, which the trial court dismissed. On appeal, the appellant raised five grounds, chiefly that the land on the ground measured only 4 acres while the title indicated 3HA (7.5 acres), that the respondent had herself complained of the shortfall in writing, and that the sale was complete upon the Land Control Board consent and execution of transfer forms, entitling him to specific performance and a refund of Ksh. 50,000 excess. N.A. Matheka J applied the established principle from Mwanasokoni v Kenya Bus Service that a first appellate court must revisit the evidence but will not interfere with findings of fact unless they were based on no evidence, a misapprehension of it, or wrong principles. The court noted the sale agreement made no mention of acreage, that the handwritten clause 9 relied on by the appellant was not countersigned, and that the appellant ought to have exercised due diligence to verify the acreage on the ground. The trial magistrate's judgment was affirmed and the appeal dismissed with costs to the appellant.

Key legal issues

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01

Whether the appeal against the trial magistrate's judgment should be allowed

Holding

The appeal was dismissed; the trial magistrate did not err in law or fact in holding that the appellant pay the balance of the purchase price or refund the amount paid

Reasoning

The court found no dispute that a contract of sale existed for Ksh. 581,250. The sale agreement made no mention of 7 or 4 acres, and a handwritten clause 9 in the appellant's exhibit was not countersigned and could not be relied upon. The appellant ought to have verified the acreage on the ground against the search certificate before purchase. On first-appeal principles drawn from Mwanasokoni v Kenya Bus Service, the court revisited the evidence but found the trial court's decision judiciously arrived at on cogent evidence and declined to interfere.

p. 2

Legal principles established

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  • An appellate court will not ordinarily interfere with the findings of fact of the trial court unless they were based on no evidence at all, on misapprehension of the evidence, or on demonstrably wrong principles
  • Specific performance will not be ordered where the contract suffers from a defect making it invalid or unenforceable, and damages may be an adequate alternative remedy

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
On appeal from
Kakamega Chief Magistrate's Court
Civil Suit No. 124 of 2009
Jurisdiction invoked
First appeal from the Principal Magistrate's Court (Environment and Land Court appellate jurisdiction)

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, "Benedict Muyula Pombo v Susan Were Makokha [2019] KEELC 4150 (KLR)", Case Analysis (2019). ELCA Case No. 28 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4150/eng@2019-03-19

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