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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 3606 (KLR)

Esther Kakonyo Wanjohi v Juliana Wambui Gakuru [2020] KEELC 3606 (KLR)

Environment and Land Court
24 January 2020
ECE.C. Cherono
2,669 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A lease signed by someone who isn't the registered landowner, and which clashes with an existing lease, cannot be enforced in Kenya.

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 from the judgment of Hon. Y.M. Barasa, Magistrate, delivered on 4th May 2018, dismissing the appellant's suit for a permanent injunction restraining the respondent from interfering with 700 tea bushes on land parcel No. INOI/THAITA/130. The appellant's case was that she initially leased 700 tea bushes from the respondent's late husband, Joseph Gakuru Igecha, under an agreement dated 4/12/2003 drawn in her brother's name for 10 years at Ksh. 84,000/-; that after two years the bushes were transferred to the respondent, with whom she entered a further lease dated 11/12/2006 for 14 years at Ksh. 109,200/-, running to 1/1/2021 inclusive of a grace year. The respondent denied any extension, asserting the 2003 lease expired in 2014, whereupon she issued a demand for vacant possession. The appeal raised ten grounds attacking the magistrate's treatment of the evidence and documents. E.C. Cherono, ELC Judge, applied the settled principle that a first appellate court must re-evaluate the evidence. The court found the second lease agreement of 11/12/2006 was not an addendum to, but mutually exclusive with, the still-subsisting 2003 lease; further, the respondent was not the registered proprietor and there was no evidence the registered owner consented to her leasing out the land. Holding that the plaintiff had failed to prove a valid lease with the respondent, the court found the trial magistrate's decision proper and dismissed the appeal with costs on 24th January 2020.

Key legal issues

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01

Validity of the second lease agreement dated 11/12/2006

Holding

The second lease agreement could not bind the respondent as it was mutually exclusive with the subsisting first lease and was entered into by a person who was not the registered proprietor without the owner's consent

Reasoning

The first lease of 4/12/2003 between Joseph Gakuru Igecha (registered proprietor) and Gachoki Joseph Mugo was for 10 years expiring 1/1/2014 and was still subsisting when the second lease dated 11/12/2006 was purportedly made by Juliana Wambui Gakuru, the wife of the registered owner. There was no evidence that the registered proprietor consented to her leasing out his land. The two agreements were mutually exclusive, so the second had no binding force.

p. 3
02

Whether the trial magistrate erred in dismissing the plaintiff's suit

Holding

The trial magistrate properly directed himself to law and fact; the plaintiff failed to prove a valid lease with the respondent and the appeal lacked merit

Reasoning

Upon re-evaluating the evidence as required on a first appeal, the court found the second agreement unenforceable for want of the registered proprietor's consent and because it conflicted with the subsisting first lease. Consequently the finding that the plaintiff failed to prove a valid lease agreement with the defendant was proper, and the appeal was dismissed with costs.

p. 3

Legal principles established

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  • The duty of a first appellate court is to re-evaluate the evidence presented in the trial court before making a determination

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay the costs of the appeal/suit

Authorities

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Cases cited (1)

  • Abok James Odera T/A A.J. Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    (2013) eKLR
On appeal from
Magistrates' Court (subordinate court)
Not stated
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court (appeal against the judgment of the trial magistrate in a land dispute)

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, "Esther Kakonyo Wanjohi v Juliana Wambui Gakuru [2020] KEELC 3606 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3606/eng@2020-01-24

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