Margaret Mbulwa Ngau v Leonard Kimaita & another [2020] KEELC 163 (KLR)
The bottom line
#The High Court confirmed that a plot allocated to a first buyer cannot lawfully be re-allocated to a second buyer, no matter how much they paid.
What this practically means
#Executive summary
#Key legal issues
#Nexus between Plots 42 and 43 and Plots 2788 and 2789
The plots are the same; the correspondence and DW1's evidence confirm the linkage.
The court relied on the letter dated 5th July 2007 referencing 'Commercial Plots NO. 42 and 43 Sale Agreement No. 2788 and 2789', subsequent July 2007 letters, and the admission by DW1 (the 2nd Respondent's representative) that the Appellant had been allocated land initially allocated to the 1st Respondent. The Appellant's beacon certificate also showed allocation of Plots 42 and 43.
Existence of a binding contract between the 1st and 2nd Respondents
The sale agreements dated 7th December 2004 complied with Section 3(3) of the Law of Contract Act and were valid and binding.
The agreements were in writing, signed by the parties, and contained names of parties, property description, purchase price and conditions. The 2nd Respondent could not unilaterally vary the contract by demanding an extra Kshs.5,000 or re-allocate the plots, since there was no variation agreement signed by both parties.
Ownership of the suit properties
The 1st Respondent is the legal owner; the 2nd Respondent had no capacity to re-allocate or sell to the Appellant.
Applying M'Ikiara M'Mukanya v Gilbert Kabere M'Mbijiwe, property already allocated to the 1st Respondent was not available for allocation. The Appellant's subsequent sale agreement and payment could not defeat the prior allocation, and the unilateral revocation of the sale by the Society was not in compliance with its own regulations.
Merits of the appeal and costs
The appeal was without merit; costs follow the event under Section 27 of the Civil Procedure Act.
The court re-evaluated the evidence under Selle v Associated Motor Boat Co and concluded the trial magistrate did not err or misapprehend the facts. As the 1st Respondent was the successful party, he was entitled to the costs of the appeal.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
- A court cannot rewrite a contract between parties; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved.
- A person who has been allocated a plot and pays the due amounts becomes the owner and need not be in physical possession.
- Property already allocated to one person is not available for allocation to another; an allocation to a second party is of no effect in law.
Court orders
#- 1.The Appeal is not merited and the same is dismissed entirely.
- 2.Costs of the Appeal to the 1st Respondent.
- 3.Judgment/ruling delivered online by consent with waiver of Order 21 rule 1 of the Civil Procedure Rules.
- On appeal from
- Thika Chief Magistrate's Court
- Thika CMCC No.251 of 2018
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Mbulwa Ngau v Leonard Kimaita & another [2020] KEELC 163 (KLR)", Case Analysis (2020). Thika CMCC No.251 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/163/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.