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ELCDismissedMeru ELC Appeal (from CMCC ELC No 77 of 2019)· [2023] KEELC 725 (KLR)

Bundi v Angaine & 2 others (Environment and Land Appeal E060 of 2021) [2023] KEELC 725 (KLR)

Environment and Land Court
15 February 2023
3,939 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a landowner's appeal, confirming that alleging a sale agreement is forged requires real proof, not just denial.

What this practically means

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Executive summary

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This is a first appeal from the Chief Magistrate's Court at Meru (ELC No 77 of 2019) decided by C.K Yano, J of the Environment and Land Court at Meru. The 1st respondent had sued the appellant, his estranged wife (the 2nd respondent) and the County Government of Meru, seeking a declaration that she was the lawful/equitable owner of Plot No BP/MCM/23(17) on the strength of a sale agreement dated February 11, 2005, an order for transfer and registration, a permanent injunction and costs, relying on constructive trust arising from payment of the full consideration of Kshs 450,000, payment of rates and long occupation. The trial magistrate, in a judgment delivered on April 29, 2021, found the agreement binding, rejected allegations of forgery and collusion, and entered judgment for the plaintiff with each party bearing own costs. The appellant appealed on five grounds, contending the suit was baseless, that his defence and evidence were ignored, and that the judgment was against the weight of evidence, alleging the agreement was a forgery. The court framed three issues and held that the suit disclosed a reasonable cause of action; that the trial court considered the appellant's defence and evidence; and that the appellant, having alleged forgery, failed to adduce evidence such as a handwriting expert to prove it, the burden lying on him. Finding the trial magistrate's conclusions justified, the court dismissed the appeal with costs to the respondents.

Key legal issues

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01

Whether the suit was without basis (disclosed no reasonable cause of action)

Holding

The suit raised a reasonable cause of action and bona fide triable issues; it was not scandalous, frivolous or vexatious under Order 2 Rule 15

Reasoning

The 1st respondent exhibited a sale agreement dated February 11, 2005 showing purchase of the suit property for Kshs 450,000, payment in full and subsequent possession. The 2nd respondent admitted the sale. The pleadings therefore raised triable issues requiring interrogation at trial and could not be said to have no basis.

p. 6
02

Whether the trial court ignored the appellant's defence and evidence

Holding

The trial court considered the defence, testimony, the disputed agreement and the OB report

Reasoning

The appellate court perused the trial judgment and found it expressly considered the pleadings, witness statements, affidavits, exhibits including the disputed agreement and the purported OB report, and the allegation of forgery and collusion. There was accordingly no omission of the appellant's case.

p. 7
03

Whether the trial judgment was against the weight of the evidence

Holding

The trial magistrate was justified; the appellant failed to prove his forgery and collusion allegations

Reasoning

The 1st respondent produced the sale agreement, admitted by the 2nd respondent. The appellant disputed his signature but called no handwriting expert; the trial court compared the disputed signature with his undisputed signature on his affidavit and found them identical even to the naked eye. The burden lay on the appellant, who alleged forgery, to prove it.

p. 7

Legal principles established

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  • A party who alleges forgery must adduce evidence, such as a handwriting expert, to prove the allegation; failure leaves pleadings as mere unproven allegations
  • On a first appeal, the court has a duty to evaluate, re-assess and re-analyse the evidence to determine whether the conclusions below were justified

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.Judgment of the trial magistrate delivered on April 29, 2021 upheld

Authorities

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Legislation

  • Civil Procedure RulesOrder 2, Rule 15
  • Evidence ActSection 107(1)
  • Evidence ActSection 109

Cases cited (6)

  • DT Dobie & Company (Kenya) Limited V Joseph Mbaria Muchina & another
    [1989] eKLR
  • Job Kilach vs Nation Media Group Ltd & Others
    [2015] eKLR
  • Gladys Jepkosgei Boss V Star Publication Limitation
    [2021] eKLR
  • Mursal & Another (suing as the legal administrator of Dalphine Kanini Manesa
    Civil Appeal E20 of 2021 [2022] KEHC 282 (KLR)
  • Mbuthia Macharia Vs Annah Mutua & Another
    [2017] eKLR
  • Republic V County Government of Meru & another ex-parte Isabela Mwendwa M'angaine
    [2018] eKLR
On appeal from
Chief Magistrate's Court at Meru
ELC No 77 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (ELC 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, "Bundi v Angaine & 2 others (Environment and Land Appeal E060 of 2021) [2023] KEELC 725 (KLR)", Case Analysis (2023). Meru ELC Appeal (from CMCC ELC No 77 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/725/eng@2023-02-15

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