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ELCDismissedEnvironment and Land Appeal 38 of 2019· [2023] KEELC 20807 (KLR)

Daniel Kyusya Muthami v Mohamed Mutsongi, Bibi Karisa & Mariam Bilali Hassan

Environment and Land Court of Kenya
24 May 2023
LNL.L. Naikuni
10,706 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land buyer's appeal because his purchase agreement was never signed by the seller.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Mombasa against the judgment of Principal Magistrate A.S. Lessotia delivered on 30th July 2019 in Civil Case 2314 of 2015, which had dismissed the Appellant's suit claiming ownership of Plot No. 823 measuring 120ft by 60ft purchased in 2005 from Mbarak Ali Hamadi through his father-in-law Maalim Fundi Lewa. The Respondents claimed Plot No. 2074, which had a foundation, purchased jointly in 2014 from Shehi Murisa Kumbi, and asserted the Appellant built on the wrong portion. The Respondents raised a jurisdictional objection contending the dispute was a boundary dispute in unsurveyed land under Sections 18(2) and 19(3) of the Land Registration Act. The Court held the dispute as pleaded was one of ownership falling under Section 13 of the Environment and Land Court Act and dismissed the objection. On the merits, the Court found the purchase agreement of 8th April 2005 unenforceable under Section 3(3) of the Law of Contract Act because the vendor never signed it and no valid authority of Maalim Fundi Lewa was proved. The Appellant, who admitted inserting the plot measurements himself and never called the vendor as a witness, failed to discharge the burden of proof under Sections 107 and 108 of the Evidence Act. The Court endorsed the trial Magistrate's decision that each party retain the parcel they occupy, upheld the trial judgment, dismissed the appeal, and awarded costs to the Respondents.

Key legal issues

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01

Jurisdiction over the dispute

Holding

The Court has jurisdiction because the dispute as pleaded is one of ownership of the suit parcel, not a boundary dispute under Sections 18(2) and 19(3) of the Land Registration Act

Reasoning

The Respondents argued the matter was a boundary dispute in unsurveyed land, ousting jurisdiction under Sections 18(2) and 19(3) of the Land Registration Act. The Court examined the pleadings and held the Plaint raised ownership of the parcel and its parameters, which falls squarely under Section 13 of the Environment and Land Court Act. The jurisdictional objection was dismissed.

p. 10
02

Validity of the sale agreement

Holding

The purchase agreement of 8th April 2005 was unenforceable for non-compliance with Section 3(3) of the Law of Contract Act, as the vendor Mbarak Ali Hamadi never signed it

Reasoning

The agreement was signed only by Maalim Fundi Lewa and the Appellant; the purported letter of authority was never admitted in evidence as Lewa could not authenticate it. Following Kukal Properties, an agreement not executed by the seller or an authorized agent is inoperative and unenforceable. The Appellant also admitted inserting the plot measurements himself.

p. 15
03

Burden of proof on ownership

Holding

The Appellant failed to prove ownership of the suit property to the required standard and was not entitled to any relief

Reasoning

Applying Sections 107 and 108 of the Evidence Act, the Court found the documentary evidence and testimony fell short of proving ownership. The Appellant had no title, no proof the land belonged to Hamadi, and relied on neighbours' word. The Court endorsed the trial Magistrate's analysis that each party should retain the parcel they occupy.

p. 16
04

Duty of a first appellate court

Holding

The Court, as a first appellate court, must re-evaluate, re-assess and re-analyze the evidence and determine whether the trial court's conclusions should stand

Reasoning

Relying on Selle v Associated Motor Boat Co, Abok James Odera and Peters v Sunday Post, the Court restated that a first appeal is by way of retrial, but findings of fact of the trial court should not be disturbed unless clearly wrong. Having re-evaluated the evidence, the Court found no basis to interfere with the trial judgment.

p. 11

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness under Section 3(3) of the Law of Contract Act; an agreement signed by only one party is unenforceable
  • The burden of proof lies on the person who asserts a legal right, and failure to meet it defeats the claim
  • A first appellate court must re-evaluate the evidence afresh and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • The issue of jurisdiction may be raised for the first time on appeal

Court orders

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  1. 1.The Appeal through the Memorandum of Appeal dated 8th August 2019 and the Records of Appeal dated 21st April 2022 is unmerited and dismissed with costs
  2. 2.The Judgment delivered on 30th July 2019 by the trial Court in Principal Magistrate Civil Case 2314 of 2015 is upheld
  3. 3.The matter is closed
  4. 4.Costs of the Appeal awarded to the 1st and 2nd Respondents jointly and severally

Authorities

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Legislation

  • Civil Procedure ActSections 79B and G; Section 27(1)
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13, 16, 17 and 18
  • Land Registration Act No. 3 of 2012Sections 18(2) and 19(3)
  • Environment and Land Court ActSection 13(1)(2)(d)
  • Land Act, No. 6 of 2012Section 38(1)
  • Law of Contract Act, Cap. 23Section 3(3)
  • Evidence Act, Cap. 80Sections 107 and 108
  • Constitution of Kenya, 2010Article 162(2)(b)

Cases cited (18)

  • Owners of Motor Vessel MV Lillian 'S' v Caltex Oil (K) Limited
    (1989) eKLR 1653

    Jurisdiction is everything; a court without jurisdiction must down its tools

  • Dubai Bank Kenya Limited v Kwanza Estates Limited
    [2015] eKLR

    Issue of jurisdiction can be raised for the first time on appeal

  • Floriculture International Ltd v Central Kenya Ltd & 3 Others
    (1995) eKLR

    Jurisdiction can be argued at any time

  • Kenidia Assurance Co. Ltd v Otiende
    (1989) 2 KAR 162

    The rule against raising new points on appeal does not apply to jurisdiction

  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123

    Duty of first appellate court to reconsider and evaluate evidence afresh

  • Abok James Odera

    First appellate court's role to re-evaluate, re-assess and re-analyze the record

  • Peter v Sunday Post Limited
    1958 E.A. 424

    Appellate court's caution in differing from trial judge's findings of fact

  • Abdul Hammed Saif v Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270

    Principles on appellate interference with findings of fact

  • Kukal Properties Development Limited v Tafazzal H Maloo & 3 Others
    (1993) eKLR

    Agreement for sale of land not signed by all parties is inoperative and unenforceable under Section 3(3)

  • Patterson v Kanji
    (1956) 23 EACA 106

    There can be no estoppel against an Act of Parliament

  • Raila Amolo Odinga & Stephen Kalonzo Musyoka v IEBC & Others
    Presidential Petition No. 1 of 2017

    Parties are bound by pleadings; evidence without pleadings cannot be considered

  • Kyalo Elly Joy v Samuel Gitahi Kanyeri
    [2021] eKLR

    Cited on appellate non-interference with trial court findings

  • Coghlan v Cumberland
    (1898) 1 Ch. 704

    Cited on appellate deference to trial court's advantage of seeing witnesses

  • Peters v Sunday Post Ltd
    (1958) EA 424

    Appellate court's jurisdiction to review evidence exercised with caution

  • Ephantus Mwangi & Another v Duncan Mwangi
    Civil Appeal No. 77 of 1982 (1982-1988) 1 KAR 278

    Cited on appellate non-interference with trial court's findings

  • Jasbir Rai Singh v Tarchalans Singh
    eKLR (2014)

    Costs follow the event

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd

    Costs are discretionary; costs follow the event

  • Kenya Sugar Board v Ndungu Gathini
    (2013) eKLR

    Costs follow the event; compensating the successful party

On appeal from
Principal Magistrate's Court at Mombasa
Civil Case 2314 of 2015
Jurisdiction invoked
Section 13(1)(2)(d) of the Environment and Land Court Act, pursuant to Article 162(2)(b) of the Constitution

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, "Daniel Kyusya Muthami v Mohamed Mutsongi, Bibi Karisa & Mariam Bilali Hassan", Case Analysis (2023). Environment and Land Appeal 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20807/eng@2023-05-24

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