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ELCDismissedLand Case No. 2 of 2013 (Kwale) appeal· [2022] KEELC 3674 (KLR)

Bombo & 3 others v Mwasambu & another (Environment and Land Appeal 32 of 2019) [2022] KEELC 3674 (KLR)

High Court of Kenya
26 July 2022
1,239 words in judgment
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The bottom line

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The High Court in Mombasa upheld a 1995 land sale in Kwale, ruling the buyers' family proved the purchase and the sellers' 'loan' claim had no evidence behind it.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Mombasa against the judgment of the Learned Trial Magistrate, Hon. D. Nyambu (Miss), CM, in Principal Magistrate's Court Land Case No. 2 of 2013 (Kwale) delivered on May 29, 2019. The 2nd, 3rd and 4th appellants, who were defendants in the primary suit, challenged findings that Johari Mwasambu (deceased), father of the plaintiffs/respondents, had purchased plot Kwale/Mwanguda/694 from Zuma Bekombo in 1995 under an agreement dated June 17, 1995 for Kshs 37,500. The appellants contended the payment was a loan of Kshs 20,000 secured on the plot, which their father intended to redeem, that the agreement was doctored, that the claim was time barred, that the suit against the 1st defendant had abated, and that the trial magistrate lacked jurisdiction. Matheka, J. restated the duties of a first appellate court, re-evaluated the record, and found no documentary proof of the alleged loan, no proven forgery, and noted the 2nd appellant witnessed the sale agreement. The court held the plaintiffs had proved their case on a balance of probabilities, that any abatement against the 1st defendant would not nullify the judgment against the other defendants, and declined to interfere with the trial court's findings on appeal. The appeal was dismissed with costs on July 26, 2022.

Key legal issues

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01

Whether the plaintiffs proved the 1995 sale of plot Kwale/Mwanguda/694

Holding

The plaintiffs' father purchased the suit land from Zuma Bekombo for Kshs 37,500 in 1995 and took possession until 2012

Reasoning

PW1 produced the limited grant and sale agreements dated June 17, 1995 and April 17, 1995. The defendants alleged the money was a loan of Kshs 20,000 secured on the plot, but adduced no documentary evidence of a loan and proved no forgery. The 2nd appellant appears as a witness on the sale agreement. In the absence of proof of the loan claim, the plaintiffs' account stood proven on a balance of probabilities.

p. 3
02

Abatement of the suit against the 1st defendant (Chizi Bombo)

Holding

Any abatement against the 1st defendant, whose withdrawal notice had been indicated, would not nullify the judgment against the other defendants

Reasoning

The appellants argued judgment could not stand against Chizi Bombo because the suit against her had abated before judgment. The court noted the plaintiffs' advocate had indicated on 9th May 2018 an intention to file a notice to withdraw the claim against her; failing which the suit would have abated against her only, leaving the judgment intact against the remaining defendants.

p. 3

Legal principles established

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  • On a first appeal, the court must re-evaluate, re-analyse and reconsider the evidence afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses
  • He who asserts a legal right dependent on facts must prove the existence of those facts
  • An appellate court will not interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (3)

  • Gitobu Imanyara & 2 others v Attorney General
    (2016) eKLR
  • Mbogo & another v Shah
    (1968) EA 93
  • Nkube v Nyamiro
    (1983) KLR 403
On appeal from
Principal Magistrate's Court, Kwale
Land Case No. 2 of 2013 (Kwale)
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (subordinate court appeal)

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, "Bombo & 3 others v Mwasambu & another (Environment and Land Appeal 32 of 2019) [2022] KEELC 3674 (KLR)", Case Analysis (2022). Land Case No. 2 of 2013 (Kwale) appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3674/eng@2022-07-26

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