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ELCDismissedNot stated in the extract (First Appeal from the trial court, Meru)· [2021] KEELC 3750 (KLR)

Salome Kaunga M’Kuubania v Joseph Kiruki [2021] KEELC 3750 (KLR)

Environment and Land Court
14 April 2021
LMLUCY N. MBUGUA
2,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed a seller's appeal, confirming she must complete a land sale she claimed she was tricked into.

What this practically means

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Executive summary

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The appellant, Salome Kiunga, was the defendant in a suit by the respondent, Joseph Kiruki Muriuki, seeking specific performance of an agreement for the sale of 3 acres excised from parcel LR No. ABOTHUGUCHI/IGANE/994 for Kshs 450,000, of which Kshs 360,000 was allegedly paid. On 18/09/2014 the trial court ordered specific performance, directing transfer of 3 acres within 21 days upon payment of the balance, failing which the executive officer could execute the transfer documents. The appellant appealed on four grounds, contending she was an elderly citizen duped into the sale, that there was no consensus ad idem, and that the trial magistrate misapprehended the evidence. She also argued, for the first time on appeal, that no Land Control Board consent for transfer had been obtained. The amended memorandum of appeal, filed out of the time granted, was disregarded. The ELC at Meru, per Lucy N. Mbugua ELC J, sitting as the first appellate court, framed a single issue: whether there was a valid sale agreement. The court found the appellant's testimony riddled with inconsistencies: she claimed not to recall events yet detailed visits to two advocates' offices; the son she alleged was excluded was a witness to the agreement; she never reported any fraud; and want of consent was never pleaded. Citing the Supreme Court's decision in Florence Nyaboke Machani, the court declined to entertain the unpleaded consent issue. Applying the principle that courts should not rewrite contracts, the court held the agreement valid and willingly entered into, affirmed the trial court's judgment, and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether there was a valid sale agreement between the parties

Holding

There was a valid, willingly entered sale agreement; the appellant's claims of being duped were contradicted by her own testimony and the conduct of the parties.

Reasoning

The appellant's testimony was inconsistent, yet she could recall details of visits to two advocates' offices, and Samwel Kubania, whom she claimed was excluded, was a witness to the agreement. She never reported any fraud to the police and did not plead want of consent. Evidence from PW1 and PW2 confirmed payment of Kshs 360,000 and explanation of the agreement in Kimeru in the presence of all parties.

p. 3
02

Whether the Land Control Board consent issue could be raised on appeal when not pleaded at trial

Holding

It could not; the consent issue was not pleaded before the trial court and was therefore not a subject of contest there.

Reasoning

Relying on the Supreme Court's decision in Florence Nyaboke Machani v Mogere Amosi Ombui, the court held that admitting and determining a new issue on appeal would amount to determining it in the first instance, contrary to established principle and the design of the judicial system.

p. 3

Legal principles established

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  • A court of law should not rewrite a contract between parties; parties are bound by their agreement
  • A first appellate court must evaluate and analyze the evidence on record and make its own determination, mindful it did not hear witnesses
  • An appellate court will not determine a new issue not pleaded or raised before the trial court

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (11)

  • Damson Muniu Njeru V William Kiptarbei Korir & 6 others
    [2014]eKLR
  • Cecilia Nyambura Murunga V John Ndung'u Maina
    [2018]eKLR
  • Emo Investments Ltd V Stephanus Petrus Kiinge
    [2010]eKLR
  • Storer V Manchester City Council
    [1974] 1 W.L.R. 1403
  • Mamta Peeush (Suing on behalf of the estate of the late Peeush Premlal Mahajan) V Yashwant Kumari Mahajan (Sued personally and as executrix and beneficiary of the estate of the late Krishan Lal Mahajan
    [2017]eKLR
  • Willy Kimutai Kitilit V Michael Kibet
    [2018]eKLR
  • Elias Njue Ireri V Kubu Benson Nderi & 3 others
    [2019]eKLR
  • Gatobu M'ibuutu Karatho V Christopher Muriithi Kubai
    [2014]Eklr
  • Selle & Another vs. Associated Motor Board Company Ltd
    [1968] EA 123
  • Kenya Ports Authority vs. Modern Holdings (E.A.) Limited
    (2017) eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2015] eKLR
On appeal from
Trial court (magistrates' court, Meru)
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (sitting as the first appellate court)

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, "Salome Kaunga M’Kuubania v Joseph Kiruki [2021] KEELC 3750 (KLR)", Case Analysis (2021). Not stated in the extract (First Appeal from the trial court, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3750/eng@2021-04-14

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