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ELCDismissedMakindu Civil Appeal (Memorandum of Appeal dated 3rd July 2019, appeal from Makindu Civil Case No. 3 of 2013)· [2022] KEELC 2483 (KLR)

Makau & 2 others v Kilolo (Environment and Land Appeal 16 of 2019) [2022] KEELC 2483 (KLR)

High Court of Kenya
13 July 2022
TMT. Murigi
4,085 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Buyers who purchase land through an intermediary cannot sue the original owner — sue the person you actually paid, and keep written proof of your purchase.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. Zachariah Joseph Nyakundi delivered on 17th May 2019 in Makindu Civil Case No. 3 of 2013, which had dismissed the plaintiffs' claim for a permanent injunction, a declaration of ownership, cancellation of title, and costs in respect of Plot No. 786 Kinyambu Settlement Scheme. The Appellants alleged they each purchased 5 acres (a total of 15 acres) from Robert Anthony Shepherd, who in turn had bought 20 acres from the Respondent, who fraudulently caused only 4.2 acres to be excised. The Respondent denied the claim and counterclaimed as registered owner. The High Court identified four grounds for determination: whether the trial court disregarded the 3rd Appellant's claim; whether it erred in finding the Appellants did not purchase land vide the agreement dated 2nd August 2011; whether that agreement's only claimant was Robert Anthony Shepherd; and where the Appellants' claim properly lay. The Court reappraised the evidence as a first appellate court, applying the Selle v Associated Motor Boat Company principles. It found the 3rd Appellant produced no documentary evidence, breaching the burden of proof under Section 107 of the Evidence Act. The agreement of 2nd August 2011, compliant with Section 3(3) of the Law of Contract Act, was valid and binding between the Respondent and Shepherd only; the Appellants, lacking privity of contract, could not enforce it. Their remedy lay against Shepherd for refund or specific performance. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the 3rd Appellant proved his claim that he purchased 5 acres from Robert Anthony Shepherd

Holding

The 3rd Appellant produced no sale agreement or documentary evidence and failed to discharge the burden of proof

Reasoning

The Court applied Section 107(1) and (2) of the Evidence Act, holding that the person asserting facts on which a legal right depends must prove them. The record showed the 3rd Appellant adopted an undated statement but produced no agreement supporting his claim of purchase, so the trial magistrate could not be faulted for dismissing his claim.

p. 6
02

Whether the Appellants could enforce the agreement of 2nd August 2011 between the Respondent and Robert Anthony Shepherd

Holding

They could not, as they were not parties to the agreement and had no privity of contract with the Respondent

Reasoning

The agreement of 2nd August 2011, executed between the Respondent and Robert Anthony Shepherd in conformity with Section 3(3) of the Law of Contract Act, was valid and binding only on its parties. Relying on the privity doctrine (Agricultural Finance Corporation v Lengetia and Chitty on Contracts), the Court held the Appellants had no enforceable rights under it.

p. 8
03

Where the Appellants' remedy lies for the shortfall in acreage

Holding

Only against Robert Anthony Shepherd, for refund of monies paid or specific performance of their agreements with him

Reasoning

The valid and binding agreement of 2nd August 2011 was between the Respondent and Robert Anthony Shepherd, who alone had a claim under it for any shortfall in the 20 acres. The Appellants, having purchased from Shepherd, must seek refund or specific performance from him rather than against the Respondent.

p. 8

Legal principles established

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  • On a first appeal the court has a duty to evaluate and analyse the evidence afresh while making due allowance for the fact it did not see or hear the witnesses
  • He who alleges must prove (burden of proof under Section 107 of the Evidence Act)
  • A contract affects only the parties to it and cannot be enforced by or against a person who is not a party (privity of contract)

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Evidence ActSection 107(1)(2)
  • Law of Contract ActSection 3(3)

Cases cited (3)

  • Selle & Another Vs Associated Motor Boat Company and Others
    (1968) 1 EA 123
  • Ephantus Mwangi & Another Vs Duncan Mwangi
    1982-1988 1 KAR 278
  • Agricultural Finance Corporation Vs Lengetia
    [1982-1988] 1 KAR 772
On appeal from
Magistrates' Court (Makindu)
Civil Case No. 3 of 2013
Jurisdiction invoked
First appeal from the subordinate court under the Civil Procedure Act and Rules

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, "Makau & 2 others v Kilolo (Environment and Land Appeal 16 of 2019) [2022] KEELC 2483 (KLR)", Case Analysis (2022). Makindu Civil Appeal (Memorandum of Appeal dated 3rd July 2019, appeal from Makindu Civil Case No. 3 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2483/eng@2022-07-13

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