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ELCDismissedAppeal against judgment in the suit over Parcel No. 5895 Antubetwe Kiongo Adjudication Section (plaint dated 3rd August 2012, trial court suit number not stated in judgment)· [2020] KEELC 1720 (KLR)

Nkuchiana Ngara v Joseph Kalunge Ekandi [2020] KEELC 1720 (KLR)

Environment and Land Court
14 July 2020
3,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land exchange appeal because the claimant couldn't prove the deal with witnesses and documents.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru (Lucy N. Mbugua, ELC J) against the decision of a Senior Resident Magistrate dismissing the appellant's suit seeking an order compelling the respondent to pull down structures on Parcel No. 5895 Antubetwe Kiongo Adjudication Section and give vacant possession. The appellant claimed he and the respondent concluded an oral agreement in 2000 exchanging parcels 5894 and 5895, concretised before the Land Adjudication committee, while the respondent denied the agreement and asserted ownership of commercial plot 1056, pleading limitation. On appeal, the court first declined to entertain the respondent's preliminary objections on limitation and consent raised for the first time on appeal, holding the respondent had submitted to the trial court's jurisdiction and the points were raised too late. The court then accepted that the trial magistrate erred in law by applying section 3(3) of the Law of Contract Act to an oral agreement allegedly concluded before that provision came into effect on 1st June 2003, relying on Peter Mbiri Michuki and Anderson Omondi Owandho. Nonetheless, the appellant still bore the burden of proving the exchange contract and part performance. He failed: he did not call the surveyor or the committee member who allegedly facilitated the exchange, did not avail the committee proceedings, and did not distinguish parcel 1056 from parcels 5894/5895, while the respondent's licences showed he traded on plot 1056 from 1994. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether new preliminary objections (limitation and consent) could be raised for the first time on appeal

Holding

They could not; the objections fail as they were raised late, the respondent had submitted to the trial court's jurisdiction, and entertaining them would disadvantage the appellant who had no chance to lead rebuttal evidence.

Reasoning

The court applied Platt JA in Wachira v Ndanjeru and Kenya Hotels Limited v Oriental Commercial Bank: points of law taken for the first time on appeal are only allowed where full justice can be done and no disputed facts are involved. Here the objections were pleaded but never canvassed at trial, and allowing them would change the case on appeal.

p. 3
02

Whether the trial magistrate erred by applying Section 3(3) of the Law of Contract Act to an alleged 2000 oral exchange agreement

Holding

Yes - the provision came into force on 1st June 2003 and, per section 3(7), does not apply to earlier oral contracts; the trial magistrate relied on the wrong law.

Reasoning

Relying on Peter Mbiri Michuki and Anderson Omondi Owandho, the court held that the pre-2003 proviso allowing suits on oral land contracts supported by part performance was the applicable law for a 2000 agreement, so the trial court's invocation of section 3(3) as amended was a misdirection.

p. 3
03

Whether the appellant proved the exchange contract and part performance

Holding

No. The appellant failed to call the surveyor or the adjudication committee member who allegedly facilitated the exchange, did not avail the committee proceedings, and did not distinguish parcel 1056 from parcels 5894/5895; the respondent's long-standing occupation of parcel 1056 was uncontroverted.

Reasoning

Even though the wrong law was applied below, the appellant still bore the evidential burden of proving the contract and part performance. His documentary evidence only showed reports to the Land Adjudication Officer, and the 12-year delay in filing suit undermined his claim. The respondent's trade and liquor licences from 1994 and 1998 showed he ran businesses on plot 1056 before 2000.

p. 4

Legal principles established

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  • Section 3(3) of the Law of Contract Act, which came into effect on 1st June 2003, does not apply to oral contracts for disposition of an interest in land concluded before its commencement; the pre-2003 proviso on part performance applies.
  • A new point of law (such as limitation) will not be entertained on appeal where it was not raised at the trial and would require investigation of facts not tested before the trial court.
  • On a first appeal, the court must re-evaluate the evidence and draw its own conclusions.
  • He who asserts must prove; the evidential burden under sections 107 and 109 of the Evidence Act lies on the party asserting the facts.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the Respondent

Authorities

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Legislation

  • Law of Contract ActSection 3(3) and 3(7)
  • Limitation of Actions ActNot specified
  • Land Consolidation ActSections 26 and 29
  • Land Adjudication ActNot specified (elaborate dispute resolution mechanism)
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Anderson Omondi Owandho (suing as the legal representative of the estate of Thomas Rajwal (deceased) vs Augustinos Ondieki
    (2007) eKLR / [2017] eKLR (as cited in judgment)
  • Peter Mbiri Michuki vs Samuel Mugo Michuki
    [2014] eKLR
  • Joseph K. Cherono vs Kiplagat Kimiei
    (1995) eKLR
  • Easter Produce (K) Limited versus James Kipketer Ngetish
    (2005) eKLR
  • Selle –Vs- Associated Motor Boat Co. Limited
    1968 E.A. 123
  • Twaher Abdulkarim Mohamed v Independent Electoral & Boundaries Commission (IEBC) & 2 others
    [2014] eKLR
  • Wachira v. Ndanjeru
    (1987) KLR 252
  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010
    [2013] eKLR
On appeal from
Senior Resident Magistrate's Court (Laare)
Not stated
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nkuchiana Ngara v Joseph Kalunge Ekandi [2020] KEELC 1720 (KLR)", Case Analysis (2020). Appeal against judgment in the suit over Parcel No. 5895 Antubetwe Kiongo Adjudication Section (plaint dated 3rd August 2012, trial court suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1720/eng@2020-07-14

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