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ELCDismissedNot stated in the extract (Appeal from Chief Magistrate's Court, Machakos)· [2022] KEELC 1442 (KLR)

Cornelius Kato v Peter John Mwanthi [2022] KEELC 1442 (KLR)

Environment and Land Court
16 February 2022
ANA. NYUKURI
2,969 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 confirmed that a second buyer of land gets nothing if someone already bought it first.

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 Machakos against the judgment of the Chief Magistrate's Court delivered on 25th September 2019, which upheld the Plaintiff/Respondent's claim over Plot No. 1016 Utithi Settlement Scheme (30ft by 100ft at Kibwezi) and dismissed the Defendant/Appellant's counterclaim. The Respondent alleged he purchased the plot from Mathew Mutisya on 18th September 1983 for Kshs. 5,000, took possession and demarcated it with a trench; the Defendant claimed through a chain running from Marietta Nthenya Makite through Pascal Makite and Daniel Muteti Mukunuku to himself, and sought a permanent injunction against the Respondent. The Appellant advanced three grounds: failure to consider his evidence, failure to establish the Respondent's ownership and the position of the suit property, and wrongful dismissal of the counterclaim. The court, per A. Nyukuri J, framed a single issue: whether the trial court misapprehended the evidence and reached wrong conclusions. Applying the settled duty of a first appellate court to re-evaluate evidence while giving weight to the trial court's advantage in seeing and hearing witnesses, the court found the Respondent proved ownership, that he was the uncontested first purchaser, and that the land was therefore unavailable for the subsequent sale and gift relied on by the defence. Relying on Article 40(6) of the Constitution and the doctrine of nemo dat quod non habet, the court upheld the finding that no good title passed to the Appellant, whose remedy lay against his vendors. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial court misapprehended the evidence on ownership and the position of the suit property

Holding

The trial court properly evaluated the evidence; the Respondent proved purchase and possession of the suit property from Mathew Mutisya, and the magistrate's assessment of credibility was entitled to great weight.

Reasoning

The Respondent testified he bought the plot on 18th September 1983, paid Kshs. 5,000 in full, and dug a trench demarcating it. PW3, the seller's wife, confirmed the sale and denied any subsequent sale. The appellant's contrary evidence (DW6) did not dislodge this. The magistrate, having seen and heard the witnesses, chose to believe the Plaintiff's evidence, a finding the appellate court would not disturb absent demonstrated error.

p. 4
02

Whether the defence chain of title passed good title to the Appellant

Holding

No good title passed to the Appellant because Marietta Nthenya Makite and the intermediate sellers had no title to convey, the land having first been validly sold to the Respondent.

Reasoning

The Respondent was the first purchaser from Mathew Mutisya and that fact was not contested; once the first sale was completed, the land was not available for any subsequent sale or gift. Applying nemo dat quod non habet and Article 40(6) of the Constitution, the trial court was correct that the Defendant's remedy lay against those who sold to him.

p. 4

Legal principles established

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  • A transferee cannot pass a better title than he himself possesses (nemo dat quod non habet), and constitutional property rights do not extend to unlawfully acquired property.
  • On a first appeal the court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Evidence ActSections 108 and 109
  • Constitution of Kenya, 2010Article 40(6)

Cases cited (12)

  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Abdul Hammed Saif vs. Ali Mohamed Sholan
    [1955] 22 EA CA 270
  • Peters vs Sunday Post Limited
    [1958] EA 424
  • Walt vs Thomas
    [1947] A.C 484
  • Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 Others
    [2015] eKLR
  • James Finlay (K) Ltd vs Jacob Wabuke Wanyonyi
    [2017] eKLR
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Isaac Gathungu Wanjohi & Another vs Attorney General & 6 Other
    [2012] eKLR
  • M'imana M'ithalia vs Kamotho Ntonjia & Another
    [2021]
  • DS (minor suing through her mother) JWM vs CKK
    [2021] eKLR
  • Kiruga vs. Kiruga & Another
    [1988] KLR 348
  • Abok James Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
On appeal from
Chief Magistrate's Court
Not stated
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (statutory appellate jurisdiction; specific provision not stated in the judgment)

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, "Cornelius Kato v Peter John Mwanthi [2022] KEELC 1442 (KLR)", Case Analysis (2022). Not stated in the extract (Appeal from Chief Magistrate's Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1442/eng@2022-02-16

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