Mulu & another v Muka Mukuu Farmer Co-operative Society Limited & another (Environment and Land Appeal 4 of 2019) [2022] KEELC 3838 (KLR)
The bottom line
#A Kenyan court upheld a land sale agreement, ruling that written acreage terms cannot be changed later without proof of fraud or coercion.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal erred in fact and in law in upholding the 2nd Respondent's claim when there was allegedly insufficient evidence to support it (Grounds 1, 4, 5 and 6)
- 2.Whether the Tribunal erred in failing to appreciate the Appellant's evidence and that of her witnesses (Grounds 1, 4, 5 and 6)
- 3.Whether the Tribunal erred in holding that the 2nd Respondent is the proprietor of Plot No 12-053 (Ground 3)
- 4.Whether the Tribunal erred in finding that 4 acres (and not a portion measured by strides) of the suit property was sold to the 2nd Respondent
Key legal issues
#Standard of review of the Tribunal's findings of fact by a first appellate court
The Court, as first appellate court, was obliged to review and re-evaluate the evidence and draw its own conclusions while making allowance for not having seen the witnesses; on doing so it agreed with the Tribunal's findings.
Relying on Selle v Associated Motor Boat Ltd, the Court restated the duty of a first appellate court to conduct an independent appraisal of the evidence. After re-evaluating the testimony of the Appellant and her witnesses against the two executed sale agreements, the Court concluded the Tribunal properly appreciated the evidence and reached the correct conclusion that 4 acres were sold.
Whether the Appellant could vary the express acreage terms of the executed sale agreements by alleging the land was measured in strides
No. The written agreements were binding; the Appellant could not unilaterally vary their explicit acreage terms absent pleaded and proved vitiating factors.
The two sale agreements contained explicit terms on acreage, price per acre and payment scheme, and bore the Appellant's unchallenged signatures. No forgery, coercion, undue influence or misrepresentation was alleged or proved. Relying on National Bank of Kenya v Pipeplastic Samkolit, the Court held parties are bound by their contract and a court cannot rewrite it, nor permit a party to escape a bad bargain.
Admissibility of extrinsic evidence to contradict a written agreement
Extrinsic evidence is not admissible to contradict, vary or add to the terms of a document where the parties' intention has been reduced to writing.
The Court adopted the holding in The Speaker of Kisii County Assembly v Nyaoga, which invoked Sections 97 and 98 of the Evidence Act and Halsbury's Laws, to reject the Appellant's attempt to substitute strides for the express acreage in the executed agreements. The written terms were held to be explicit, clear-cut and unequivocal.
Burden of proof on the disputed acreage
The Appellant, having contended she did not sell 4 acres, bore the burden of proving that contention and failed to discharge it.
The Court held it was incumbent on the Appellant to tender credible and believable evidence that what was sold was not 4 acres. Her evidence that the portion was measured in strides fell short of controverting the documentary evidence - the two executed agreements - which contained the acreage terms.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
- A court cannot rewrite a contract between parties; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved.
- Where the parties' intention has been reduced to writing, extrinsic evidence is generally not admissible to contradict, vary or add to the terms of the document.
Court orders
#- 1.The Appeal be and is hereby Dismissed with costs to the 2nd Respondent only
- 2.The 1st Respondent was removed from the proceedings vide Consent order adopted by the Court on the October 23, 2019
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Co-operative Tribunal
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over a decision of the Co-operative Tribunal (statutory appeal via Memorandum of Appeal dated February 5, 2019, amended March 18, 2019)
Relief refused
#The Appellant's appeal against the Tribunal's finding that 4 acres (not a portion measured in strides) of Plot No 12-053 was sold to the 2nd Respondent
The Appellant failed to discharge the burden of proof on the disputed acreage; the executed sale agreements were explicit as to acreage and no vitiating factors (coercion, undue influence, misrepresentation, forgery) were pleaded or proved
Costs
Appeal dismissed with costs to the 2nd Respondent only; the 1st Respondent was removed from the proceedings by consent order adopted on October 23, 2019.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently and in the premises, the Appeal be and is hereby Dismissed with costs to the 2nd Respondent only.
Having reviewed the Grounds of Appeal raised by the Appellant and having similarly, considered the submissions by and/or on behalf of the Parties, the Court comes to the conclusion that the Appeal herein is devoid and/or bereft of merits.
A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue infiuence are pleaded and proved.
I come to the same conclusion as the Tribunal and do hereby hold and find that the Tribunal properly analyzed, evaluated and appreciated the evidence by the Appellant and ultimately arrived at the correct conclusion.
However, the Appellant failed to discharge the Burden of proof, as pertains to the disputed acreage which was sold.
Issues in the judgment
#The judgment records the agreed price of the May 8, 2005 sale agreement as Kenya Shillings Two Hundred Thousand (270,000,000) Only - the figure in brackets (270,000,000) conflicts with the words 'Two Hundred Thousands'.
Ground (f) of the Amended Memorandum of Appeal refers to 'the 1st Appellant' although the appeal involves only one Appellant, and the ground claims residence and occupation 'since the year 1965' which is inconsistent with the pleaded 2005 sale.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulu & another v Muka Mukuu Farmer Co-operative Society Limited & another (Environment and Land Appeal 4 of 2019) [2022] KEELC 3838 (KLR)", Case Analysis (2022). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3838/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.