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ELCPartially Allowed· [2020] KEELC 2481 (KLR)

Joan Njoki Gitau & another v Lucy Wambui Kiboi [2020] KEELC 2481 (KLR)

Environment and Land Court (or successor court) of Kenya at Nairobi
12 March 2020
3,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who claims a sale agreement was forged must prove it with strong evidence — or the buyer keeps the land.

What this practically means

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Executive summary

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The plaintiffs sued by plaint dated 13th September, 2010, amended on 19th March, 2014, seeking declarations that no agreement existed for the sale of Plot No. V 3299 (a subdivision of L.R. No. 10904/2), that no purchase price was paid, that the 2nd plaintiff was the legal owner, and a mandatory injunction to recover possession. They alleged the defendant forged a sale agreement. The defendant, by amended defence and counter-claim, averred she bought the suit property alongside Plots 1279B and 1291B, paid the full price, and counter-claimed for a declaration of ownership and Kshs. 96,000/= comprising a Kshs. 50,000/= refund for an uncompleted fourth plot (P1291) and Kshs. 46,000/= allegedly extorted. The court framed six issues and found, on the payment acknowledgement receipts signed by the 1st plaintiff and the sale agreement dated 18th June, 2006 signed by the 2nd plaintiff, that a valid agreement existed and that the defendant paid the full purchase price. The forgery allegation failed for want of strict proof, particularly since the 2nd plaintiff did not testify and his 2010 affidavit admitted an agreement covering three parcels. The plaintiffs' suit was dismissed. On the counter-claim, the defendant was declared lawful owner; only Kshs. 40,000/= was proved as paid for Plot No. P1291, and the court set it off against the Kshs. 150,000/= the defendant had agreed to pay, ordering the defendant to pay the plaintiffs Kshs. 110,000/=. Each party bore its own costs.

Key legal issues

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01

Whether an agreement for sale of the suit property existed between the parties

Holding

Yes; a valid and binding agreement for sale existed

Reasoning

The court relied on payment acknowledgement receipts signed by the 1st plaintiff between 29th November, 2005 and 9th May, 2006 and the land sale agreement dated 18th June, 2006 signed by the 2nd plaintiff in the presence of witnesses. The receipts described the suit property, the 1st plaintiff did not dispute her signatures, and the 2nd plaintiff's own affidavit admitted the sale of three parcels including the suit property, contradicting his claim of forgery.

p. 3
02

Whether the defendant paid for the suit property

Holding

Yes; the full purchase price was paid

Reasoning

The receipts acknowledged payments made over the period for the suit property, referred to the suit property rather than the two earlier plots, and the agreement of 18th June, 2006 acknowledged receipt of the entire purchase price. The court found the payments were on account of the purchase price for the suit property.

p. 3
03

Whether the alleged forgery was proved

Holding

No; the plaintiffs failed to strictly prove forgery and fraud

Reasoning

The court applied the cited authorities that forgery must be strictly proved. The 2nd plaintiff, who alleged forgery, did not testify to rebut the defendant's evidence, and his 2010 affidavit admitted an agreement to sell three parcels including the suit property, contradicting the 1st plaintiff's testimony.

04

The defendant's entitlement under her counter-claim

Holding

Entitled to a declaration of ownership; monetary award limited to Kshs. 40,000/=, set off against the agreed Kshs. 150,000/=, netting Kshs. 110,000/= payable to the plaintiffs

Reasoning

The court found only Kshs. 40,000/= was proved as paid for Plot No. P1291; the other alleged payments of Kshs. 46,000/= were not shown to be refundable. Invoking sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution, the court effected a set-off of the unclaimed Kshs. 150,000/= to do substantive justice and close the dispute.

p. 4

Legal principles established

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  • Forgery and fraud are serious allegations that must not only be pleaded but strictly proved
  • A party alleging forgery bears the onus of placing evidence before the court in proof of the allegation
  • A defect in payment receipts under section 3(3) of the Law of Contract Act may be cured by a duly executed and witnessed agreement for sale

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.A declaration is made that the defendant is the lawful owner of Plot No. V 3299
  3. 3.The defendant shall pay to the plaintiffs a sum of Kshs. 110,000/= being the amount of Kshs. 150,000/= that the defendant had agreed to pay to the plaintiffs on 21st March, 2009 less Kshs. 40,000/= that was paid to the plaintiffs for Plot No. P1291
  4. 4.Each party shall bear its own costs of the suit

Authorities

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Legislation

  • Law of Contract Act, Chapter 23 Laws of Kenyasection 3(3)
  • Civil Procedure Actsections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Zakayo Michubu Kibuange v Lydia Kaguna Japheth & 2 others
    [2014] eKLR
  • R.G. Patel v Lalji Makani
    [1957] E.A 314
  • Nyangate Guto alias Watson Mogere Mogoko v Maxwell Okemwa Mogoro & another
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes; section 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution invoked in support of substantive justice

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, "Joan Njoki Gitau & another v Lucy Wambui Kiboi [2020] KEELC 2481 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2481/eng@2020-03-12

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