Owuor v Adar (Environment and Land Appeal E045 of 2022) [2024] KEELC 835 (KLR)

Exhibit 4 was rendered in a language neither English nor Swahili with no translation, contrary to Section 86(1) of the Civil Procedure Act and Section 23 of the Environment and Land Court Act on court language. The court relied on precedent holding that untrans-lated documents cannot be relied upon. Further, the document was not signed by all parties, failing the statutory threshold in Section 3 of the Law of Contract Act for contracts for disposition of an interest in land. Both defects rendered it invalid and without probative value.

The sale was said to have occurred in 1980 and the suit was filed some 39 years later. The court held that enforcement of a contract claim ought to have been done within six years under the Limitation of Actions Act, so the Respondent's claim founded on purchase was statute-barred at filing.

On the ground concerning inheritance and levirate unions, the court noted the appellant's reliance on Estate of Gamaliel Otieno Onyingo (deceased) and the Respondent's reliance on Jairo K. Otiato v Samson Otieno for the proposition that customary law must be proved by evidence. The court found on the evidence that the appellant was the son of the deceased and hence entitled to the suit land.

The trial court's judgment rested on the sale agreement and consent documents. Once those were found invalid for non-translation and non-compliance with the Law of Contract Act, and the claim time barred, the foundation of the Respondent's claim collapsed and there was no basis for entry of judgment in his favour.