Nyabande & another v Mumbo & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 5158 (KLR)
The bottom line
#The Kisumu Environment and Land Court cancelled orders forcing land heirs to complete old sale agreements, ruling only true owners or administrators can transfer inherited land.
What this practically means
#Executive summary
#Key legal issues
#Enforceability of the agreements of sale dated 5th December 1984 and 6th July 2018
Neither agreement could support specific performance. The 1984 claim was time-barred and was not revived by the 2018 agreement; the 2018 agreement could not be enforced against the 1st appellant who was not party to it, and the 2nd appellant could not perform it since the grant had already been issued to the 1st appellant and the property was jointly registered.
Specific performance is a discretionary equitable remedy. The 2nd appellant was not an administrator or registered owner in 2018, so she could not revive the deceased's agreement. The property had been transmitted to the 1st appellant and transferred jointly to both appellants. A party cannot be compelled to perform an agreement to which he is not a party, and a joint owner cannot unilaterally transfer the whole property.
Adverse possession (cross-appeal)
Not proved. The 1st respondent entered with the deceased's permission, never proved its withdrawal, and had surrendered possession to the 2nd respondent in 2016; a purchaser cannot simultaneously claim as adverse possessor.
An adverse possessor must prove non-permissive, actual, open, notorious, exclusive and adverse occupation for 12 years (nec vi, nec clam, nec precario). The burden lies on the claimant to show when permission was withdrawn and possession became adverse. The 1st respondent treated the agreements as alive by seeking specific performance and was not in occupation at filing in 2020.
Whether limitation could be raised in cross-appeal though never pleaded
No. Limitation must be specifically pleaded under Order 2 Rule 4; it is not a pure jurisdictional issue and the authority cited by the respondents was distinguishable.
The respondents never pleaded limitation, did not raise it at trial or in submissions, and the lower court made no finding on it. Citing pleading principles, the court held parties are bound by their pleadings and cannot raise a fresh case on appeal without amendment. The Phoenix of E.A. Assurance case on jurisdiction was distinguishable as it dealt with jurisdiction, not limitation.
Refund of purchase price
Kshs. 5,600 paid to the deceased is recoverable only from the estate, against which no counterclaim was brought; but the 2nd appellant, having received Kshs. 35,000, must refund it on unjust enrichment principles.
The alternative refund prayer was properly not considered by the lower court as the main relief (specific performance) had been granted. On appeal, the Kshs. 5,600 claim fails because the appellants sued in personal, not representative, capacity. Retention of the Kshs. 35,000 received by the 2nd appellant under a failed agreement would amount to unjust enrichment.
Status of cross-appeals and notices of grounds affirming decision
Order 42 Rule 32 empowers the appellate court to decide all issues; cross-appeals are good practice though unprovided for, and should be filed after service of the memorandum of appeal and before directions; notices of grounds affirming decision are unnecessary.
The court observed that the Civil Procedure Act and Rules make no provision for cross-appeals or notices affirming a decision, since Order 42 Rule 32 already permits the appellate court to decide any issue in favour of any respondent. Nonetheless, a respondent wishing to challenge part of the decision should file a cross-appeal within the suggested window. A notice of grounds affirming adds nothing since such grounds arise from the trial record.
Legal principles established
#- A party who intends to rely on limitation of action as a defence must specifically plead it; it cannot be raised for the first time on appeal merely because limitation is said to be jurisdictional
- A person without capacity (not an administrator of the estate nor registered owner) cannot revive or complete a deceased vendor's sale agreement
- A purchaser in possession under a sale agreement holds permissively and cannot simultaneously claim adverse possession
- Specific performance cannot be ordered against a party who was not party to the agreement, nor compel transfer of jointly-registered property to fulfil one co-owner's agreement
Court orders
#- 1.The judgment of the lower court delivered on 15th August 2023 is set aside and substituted with a judgment in favour of the appellants in terms of prayers (a) and (b) of the plaint dated 17th September 2020
- 2.The respondents in possession of Kisumu/Wathorego/455 shall vacate and hand over the property to the appellants on or before 31st December 2024, failing which the appellants may move the court for warrants of forceful eviction
- 3.The 2nd appellant shall pay the 1st respondent Kshs. 35,000/- with interest at court rates from the date of judgment until payment in full, being refund of monies paid under the agreement dated 6th July 2018
- 4.Each party shall bear its own costs of the lower court suit and of this appeal
- On appeal from
- Senior Principal Magistrate's Court at Winam (Environment and Land)
- Winam SPMELC No. 10 of 2020
- Jurisdiction invoked
- First appeal from the Senior Principal Magistrate's Court under the Civil Procedure Act and Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabande & another v Mumbo & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 5158 (KLR)", Case Analysis (2024). Kisumu Environment and Land Court Appeal (judgment on appeal from Winam SPMELC No. 10 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5158/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.