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ELCDismissedNaivasha CM ELC No. 82 of 2018 (Appeal)· [2024] KEELC 522 (KLR)

Kiarie v Muya (Environment and Land Appeal 22 of 2021) [2024] KEELC 522 (KLR)

Environment and Land Court
8 February 2024
LOL. A. Omollo
3,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The court ruled the seller had been paid his land money in cash, so the appeal failed and he must vacate the Gilgil plot.

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 against the judgment of Hon. Kennedy Bidali, Senior Resident Magistrate, delivered on 22nd September 2021 in Naivasha CM ELC No. 82 of 2018. The Respondent had sued for eviction, permanent injunctions, damages for trespass and mesne profits over Plot No. 347 Ngomongo, Gilgil, which he purchased from the Appellant for Kshs. 800,000. The Appellant defended on the basis that the purchase price was never paid, that the money was to be transferred directly from the Respondent's bank account to his own, and that he re-entered the property on 17th August 2016 after the payment failed. He also complained that his advocate died mid-suit, that he litigated in person, and that CCTV footage of the banking hall on the payment date was never availed. The trial magistrate entered judgment for the Respondent on prayers (a), (b) and (c) of the plaint, plus general damages of Kshs. 200,000 and mesne profits of Kshs. 200,000, with eviction within 21 days, costs and interest. L. A. Omollo J framed two issues: whether the trial magistrate erred in issuing those orders, and costs. Applying the settled role of a first appellate court, the court found overwhelming, uncontroverted evidence that the Appellant was paid in cash: he signed the agreement acknowledging receipt, executed transfer documents, and gave vacant possession, with three eyewitnesses confirming the cash payment. The CCTV footage was immaterial as neither party availed it. The court affirmed the trial judgment and dismissed the appeal with costs to the Respondent.

Key legal issues

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01

Whether the Appellant was paid the purchase price of Kshs. 800,000 for Plot No. 347 Ngomongo

Holding

The court agreed with the trial magistrate that there was overwhelming evidence that the Appellant was paid the purchase price in cash, notwithstanding that the agreement provided for bank transfer

Reasoning

The Appellant signed the agreement acknowledging receipt of the purchase price in full, executed transfer documents at the sub-county office, and gave vacant possession which he would not have done without payment. Three uncontroverted eyewitnesses, including the agent Francis Mwangi, testified that they saw the Appellant receive the cash. The CCTV footage was never availed by either party, so the court could not interrogate it and made no finding on it.

p. 8
02

Whether the Learned Trial Magistrate erred in issuing eviction, permanent injunction and mesne profits orders

Holding

The orders were legally and factually sound since the Appellant's only defence (non-payment) failed on the evidence

Reasoning

The trial magistrate's orders rested on undisputed facts and a single issue: whether the Appellant was lawfully in occupation. Having found payment was made, the eviction, injunction and mesne profits orders followed logically from the plaint's prayers. The appellate court, guided by the overriding objective and Article 159(2)(d), found nothing warranting interference with the trial court's finding.

p. 9
03

The relevance of the CCTV footage

Holding

The issue of the CCTV footage was immaterial because neither party availed it in evidence

Reasoning

The Respondent testified the bank said the footage was unavailable due to passage of time, and the Appellant never claimed he produced it and it was disregarded. Consequently the court had no opportunity to examine it and made no finding on it, so the Appellant could not found his appeal on its absence.

p. 8

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial court's conclusions should stand
  • Costs of an action follow the event unless the court for good reasons otherwise orders

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (4)

  • Solomon Ndegwa Kuria vs Peter Nditi Gitau
    [2019] eKLR
  • Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Catherine Nasimiyu Khisa and Gladys Nakhumicha Khisa (Suing as the Administrators and Legal Representatives of the Estate of the Late Shadrack Khisa Naliakho-deceased) v Jacob Wangila Wanyama & another
    [2020] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
On appeal from
Chief Magistrate's Court at Naivasha
Naivasha CM ELC No. 82 of 2018
Jurisdiction invoked
First appeal from the magistrates' court, guided by Sections 1A, 1B, 3A and 27(1) of the Civil Procedure Act and Article 159 of the Constitution of Kenya

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, "Kiarie v Muya (Environment and Land Appeal 22 of 2021) [2024] KEELC 522 (KLR)", Case Analysis (2024). Naivasha CM ELC No. 82 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/522/eng@2024-02-08

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