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ELCDismissedNot stated in excerpt (Memorandum of Appeal dated 24th December, 2018)· [2022] KEELC 9 (KLR)

Towett v Ntutu (Environment and Land Appeal 10 of 2018) [2022] KEELC 9 (KLR)

Environment and Land Court
4 May 2022
CMC. G. Mbogo
1,430 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed an appeal against a Kshs. 288,000 award, confirming that a landowner who never received agreed rent deserves payment.

What this practically means

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Executive summary

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The appellant, who was the plaintiff in Narok Civil Suit No. 8 of 2014, appealed to the Environment and Land Court against the judgment of Hon. T. Gesora (Senior Principal Magistrate) delivered on 30th November 2018, which had allowed the respondent's counter-claim for Kshs. 288,000 for the planting season between January 2013 and December 2013. The dispute arose from a lease agreement dated 4th February 2013 over 72 acres of land at Kshs. 4,000 per acre. The appellant claimed he paid the rent in cash before the advocate, Mr. Yenko, and that the respondent breached the lease by allowing another party to plough the land in November 2013. The respondent, however, testified that he was never paid; the agreement was engineered to restrain Mr. Wood (Hugowood) from further ploughing the land, and that the appellant went on to plant and harvest wheat, paying only Kshs. 45,000 for chemicals. Mr. Yenko confirmed no money passed through his office and that the agreement's purpose was to lock out the other tenant. Guided by Selle & another v Associated Motor Boat Co. Ltd, the court re-evaluated the evidence as a first appellate court and found no sufficient reason to disturb the trial court's finding that the appellant took advantage of the agreement, ploughed the land and harvested wheat, and that fairness required payment to the respondent. The memorandum of appeal dated 24th December 2018 was dismissed with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate's judgment allowing the respondent's counter-claim should be set aside

Holding

The appeal was unmeritorious; the trial magistrate's finding that the lease agreement was intended to lock out Mr. Wood and that the appellant ploughed and harvested wheat on the land, warranting payment to the respondent, was supported by the evidence.

Reasoning

The court, sitting as a first appellate court, re-evaluated the evidence under the Selle principles. The appellant's own advocate witness confirmed no money changed hands and that the agreement's purpose was to restrain Mr. Wood. The respondent testified he was never paid the rent save Kshs. 45,000 for chemicals. The trial magistrate's finding that the appellant took advantage of the agreement and harvested wheat was supported by the evidence.

p. 3

Legal principles established

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  • The first appellate court must re-evaluate the evidence and make an independent determination while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The Memorandum of Appeal dated 24th December, 2018 is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Evidence ActNot specified (referred to generally in ground 8)

Cases cited (2)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    [1968] EA 123
  • Elisius Muranga v Andrew Mwangi Chui & 2 others
    ELC Case No. 146 of 2002
On appeal from
Senior Principal Magistrate's Court, Narok
Civil Suit No. 8 of 2014
Jurisdiction invoked
First appellate court jurisdiction 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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Cite this brief

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Cite this brief

Caselaw, "Towett v Ntutu (Environment and Land Appeal 10 of 2018) [2022] KEELC 9 (KLR)", Case Analysis (2022). Not stated in excerpt (Memorandum of Appeal dated 24th December, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/9/eng@2022-05-04

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