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ELCDismissedEnvironment and Land Appeal 2 of 2020· [2023] KEELC 16680 (KLR)

Kimondo v Irungu

Environment and Land Court
30 March 2023
FNFM Njoroge
2,909 words in judgment
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The bottom line

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A Kenyan landowner who sold land but tried to cancel the deal lost her appeal because documents and long occupation proved the sale.

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 Nakuru (FM Njoroge, J) against the judgment of Hon. E. K. Usui, CM delivered on 7 November 2019 in Nakuru CMC ELC No. 275 of 2018, which dismissed the appellant's suit seeking eviction of the respondent from land parcel Nakuru/Molo/Kapsita/418 and a permanent injunction. The appellant, the registered owner of an unchallenged title, argued on appeal that the trial court erred in finding a valid sale agreement where the agreement was unsigned by the parties, untranslated from Kikuyu, and where no Land Control Board consent had been obtained; she also invoked her illiteracy and claimed the respondent's occupation was mere hospitality. The respondent maintained the appellant failed to prove her case on a balance of probabilities, that the sale was corroborated by documents including an agreement made before two chiefs recording payment of Kshs 100,000 and a letter from her own advocates, and that the Land Control Act point was never pleaded. The court framed two issues: whether the trial court erred in finding the case unproved, and costs. It held the burden lay on the appellant, found the documentary evidence and the respondent's years of physical occupation proved a sale transaction on a balance of probabilities, rejected the illiteracy argument as a cloak, and found the trial court did not err. The appeal was dismissed with no order as to costs, each party bearing their own costs of the appeal and the suit.

Key legal issues

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01

Whether the appellant proved her case on a balance of probabilities

Holding

The appeal court found that despite the sale agreement being unsigned and untranslated, the documentary evidence and the respondent's long physical occupation proved a sale transaction on a balance of probabilities.

Reasoning

The court perused DExh.2, an agreement dated 3/5/2017 made before two chiefs recording receipt of Kshs 100,000, and DExh.3, a letter from the appellant's advocate, plus a summons from the Deputy Commissioner over the land dispute. It found the contents of DExh.2 reflected what was agreed at the chiefs' meeting, and that the appellant likely demanded more money after the agreement. Illiteracy did not establish deception.

02

Whether the trial court erred in finding no proof of the case

Holding

The trial court did not err in fact and law in finding there was an agreement and that the respondent paid consideration.

Reasoning

The court agreed the burden lay on the appellant, who held the unchallenged title but disputed the sale only in evidence, not pleadings. The respondent's documents, including the chiefs' agreement and advocate's letter, corroborated payment, and the magistrate's finding on the purchase price did not negate the existence of a sale.

Legal principles established

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  • The burden of proving a claim on a balance of probabilities lies on the plaintiff whether or not the defendant adduces evidence.
  • Illiteracy alone is not proof of deception and cannot be used to denounce an agreement freely entered into.

Court orders

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  1. 1.The appeal is dismissed.
  2. 2.Each party shall bear their own costs of the present appeal and of the suit in the Magistrate's court.

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Control ActSection 6
  • Evidence ActSection 107(1)
  • Auctioneers ActCap 526

Cases cited (9)

  • Kanyungu Njogu v Daniel Kimanu Maingi
    [2000] eKLR

    Court's discretion to render judgment based on the evidence adduced.

  • Leo Investment Ltd v Estuarine Estate Ltd
    [2017] eKLR

    Formal requirements for contracts involving land under Section 3(3) of the Law of Contract Act.

  • Ngatia Kihagi v Paul Kaiga Githui
    [2017] eKLR

    Land Control Board consent requirement and voidness of transactions after six months.

  • Jackson Mokaya v James Onchangwa Macharia
    [2014] eKLR

    Documents marred with inconsistencies and unclean hands.

  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR

    Evidence disputing the sale not being in line with pleadings.

  • Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri
    Civil Appeal No 26 & 27 of 2011

    No LCB consent required in the circumstances.

  • Cephas Odongo Sweta v Kenney Wimmsy & another
    ELC Case No 234 of 2017

    LCB consent issue must be specifically pleaded.

  • Netah Njoki Kamau & another v Eliud Mburu Mwaniki
    [2021] eKLR

    Plaintiff's onus of proving its case whether or not the defendant adduces evidence; standard of proof.

  • Re H And Others (minors) (sexual abuse: standard of proof)
    (1969)

    Balance of probability standard of proof.

On appeal from
Chief Magistrate's Court at Nakuru
Nakuru CMC ELC No. 275 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court Act)

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, "Kimondo v Irungu", Case Analysis (2023). Environment and Land Appeal 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16680/eng@2023-03-30

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