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ELCDismissedKericho ELC Appeal (Memorandum of Appeal dated 17th March, 2023)· [2025] KEELC 443 (KLR)

Morusoi & another v Maritim (Environment and Land Appeal E007 of 2023) [2025] KEELC 443 (KLR)

Environment and Land Court
6 February 2025
8,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's land court confirmed a 1977 land sale was valid, so buyers' rights survive the seller's death even decades later.

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 Kericho against the judgment of Hon. C. Obulutsa CM in Kericho CM ELC Case No. 23 of 2020, in which the Respondent was declared the legal purchaser of 2.5 acres hived off land parcel Kericho/Cheborge/270 (now 1137 and 1138), was granted an order for transfer, a permanent injunction and costs. The Appellants, the widows and administrators of the deceased seller Elijah Kipkosgei Morusoi, contended that the sale was not proved, that the agreement did not satisfy Section 3(3) of the Law of Contract Act, that the suit was time barred, that the Respondent was never in occupation, and that costs were wrongly awarded. L. A. Omollo J, re-evaluating the evidence as a first appellate court, held that Section 3(3) came into effect on 1st June 2003 and does not apply retrospectively to a 1977 agreement, so oral evidence of the sale was admissible; that the 2nd Appellant's 2013 affidavit admitting the sale estopped the Appellants from denying it; and that the deceased's steps to effect the transfer (land control board consents, mutation forms, signed transfer) confirmed the sale. On limitation, the court held the cause of action was tied to the 2009 frustrated transfer and the 2013 eviction, so the 2020 suit fell within the twelve years prescribed by Section 7 of the Limitation of Actions Act. The point about late land control board consents was held to be a new issue that could not be raised on appeal, and the costs award was a judicious exercise of discretion. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Validity of the 1977 land sale agreement under Section 3(3) of the Law of Contract Act

Holding

The trial magistrate was right to hold the agreement valid: Section 3(3) is not retrospective and did not apply to a 1977 agreement; oral evidence of the sale was admissible; and the 2nd Appellant's 2013 affidavit admitting the sale estopped the Appellants from denying it

Reasoning

The agreement was entered into on 14th October 1977, long before Section 3(3) came into effect on 1st June 2003, so the signing requirement could not operate retrospectively. Two witnesses corroborated the sale. The deceased took steps to effect the transfer, including land control board consents, mutation forms and a signed transfer form. The 2nd Appellant's affidavit of 22nd November 2013 admitted the sale, supporting the estoppel finding.

p. 12
02

Whether the Respondent's suit was statutorily time barred

Holding

The suit was not time barred; the cause of action was traced to the 2009 attempted transfer and the 2013 eviction, both within twelve years of the 2020 suit

Reasoning

The suit sought declarations and an order to compel transfer, not merely enforcement of the 1977 contract. The deceased's attempt to transfer was frustrated by a restriction registered in 2008. The dispute arose upon the death of the seller and the Respondent's eviction in 2013. Applying Section 7 of the Limitation of Actions Act, twelve years had not lapsed by the time of filing in 2020.

p. 14
03

Whether the timing of the land control board consents could be raised on appeal

Holding

No; the issue was not raised before the trial court and the Appellants were precluded from raising it for the first time on appeal

Reasoning

The issue of whether the consents were obtained within the requisite period under the Land Control Act was never raised or decided at trial; the Appellants merely denied the sale. Citing the principle that appellate courts are restricted to issues canvassed and decided by the trial court except in exceptional cases, the court declined to entertain the new point as it would take the other party by surprise.

p. 15
04

Whether the Appellants evicted the Respondent from the suit parcel

Holding

Yes; the Respondent's evidence of possession and eviction was uncontroverted, and the trial magistrate was justified in so finding

Reasoning

The Respondent testified and called two witnesses (PW2 and PW3) who confirmed he took possession from the time of purchase until 2013 when the Appellants evicted him. The Appellants merely denied the sale and never responded to the eviction claim in their evidence or called witnesses. Uncontroverted evidence stands, so the finding of eviction was upheld.

p. 16
05

Whether the trial magistrate erred in awarding costs to the Respondent

Holding

No; costs follow the event under Section 27 of the Civil Procedure Act and the Appellants did not demonstrate that the discretion was exercised injudiciously

Reasoning

The trial magistrate found the Respondent had proved his case and awarded him costs. Costs are awarded at the court's discretion, which must be exercised judiciously; an appellate court will not interfere absent a showing of exercise on wrong principles or injudiciously. The Appellants offered no such demonstration, so the ground failed.

p. 18

Legal principles established

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  • Section 3(3) of the Law of Contract Act came into effect on 1st June 2003 and does not apply to contracts for the disposition of land made before that date; such contracts may be proved orally
  • In a first appeal, the appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions, while making due allowance for not having seen or heard the witnesses
  • A party is precluded from raising a new point on appeal that was not raised before the trial court, except in exceptional cases with adherence to prescribed procedure
  • A suit to recover land must be brought within twelve years under Section 7 of the Limitation of Actions Act, and where possession and later eviction are shown, limitation has not run
  • An appellate court will not interfere with a trial court's exercise of discretion on costs unless it was exercised unjudicially or on wrong principles

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The judgment of the trial Magistrate in Kericho CM ELC Case No. 23 of 2020 delivered 7th February 2022/2023 stands

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure Act (Cap. 21)Section 27
  • Law of Contract ActSection 3(3) and 3(7)
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 7
  • Evidence ActSections 107 and 108
  • Law of Succession ActSection 83(f)
  • Auctioneers Act (Cap. 526)

Cases cited (25)

  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Selle & another v Associated Motor Boat Co. Ltd & others
    [1968] EA 123
  • Mursal & another v Manese (Suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Patrick Tarzan Matu & another vs Nassim Sharifi Abdulla & 2 Others
    [2009] eKLR
  • Silverbird Kenya Limited vs Junction Ltd & 3 Others
    [2013] eKLR
  • Hirani Ngaithe Githire v Wanjiku Munge
    [1979] KLR 50
  • Githu v Katibi
    [1990] eKLR
  • Macfoy vs United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Michael Benhardt Otieno v National Cereals & Produce Board
    [2017] eKLR
  • Iga v Makerere University
    [1972] EA 65
  • Haron Onyancha v National Police Service Commission & another
    [2017] eKLR
  • Gathoni vs Kenya Co-operative Creamery Ltd
    (1982) KLR 104
  • Rawal vs Rawal
    [1990] KLR 275
  • Bosire Ogero v Royal Media Services
    [2015] eKLR
  • Lemita Ole Lemein v Attorney General & 2 Others
    [2020] eKLR
  • Nelson Kivuvani vs Yuda Komora & another
    Nairobi HCC No. 956 of 1991
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Jackson Ndwiga v Elizabeth Thara Ngahu
    [2021] eKLR
  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] eKLR
  • Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Mary Muthoni Theuri v Nelson Ndomo & 2 others
    [2019] eKLR
  • Joseph Owiti Odema v James Okoko Kadu
    [2020] eKLR
  • Kiarie v Kiratu
    (Environment and Land Appeal 77 of 2019) [2023] KEELC 18081 (KLR)
  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR
  • Shiloah Investment Limited v Evana Wafula t/a Fabulous Flowers
    (Civil Appeal E135 & E139 of 2023 (Consolidated)) [2024] KEHC 7597 (KLR)
On appeal from
Chief Magistrate's Court, Kericho (ELC)
Kericho CM ELC Case No. 23 of 2020
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act over the Chief Magistrate's Court decision

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, "Morusoi & another v Maritim (Environment and Land Appeal E007 of 2023) [2025] KEELC 443 (KLR)", Case Analysis (2025). Kericho ELC Appeal (Memorandum of Appeal dated 17th March, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/443/eng@2025-02-06

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