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ELCAllowedRuiru ELC Appeal (from Ruiru ELC No. E051 of 2022)· [2025] KEELC 1458 (KLR)

Chepkirui v Kusero & another (Environment and Land Appeal E038 of 2023) [2025] KEELC 1458 (KLR)

Environment and Land Court
24 March 2025
MOMogeni
3,914 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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A Kenyan court cancelled three plot titles obtained through an undocumented verbal deal, ruling land transfers must be in writing, signed and witnessed.

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 Thika against the judgment of Principal Magistrate J.A Agonda delivered on 15/08/2023 in Ruiru ELC No. E051 of 2022, which had found that the 1st Respondent lawfully acquired title to three plots (Ruiru Kiu Block2/23708, 23709 and 23710). The dispute arose from a 2019 verbal agreement under which the 1st Respondent, a surveyor, was to amalgamate and subdivide the Appellant's parcel RUIRU/KIU/1099 for a fee. After the Appellant paid him Kshs 104,650, he delivered only thirteen of sixteen titles, having registered the remaining three in his own name as purported compensation for his costs. The Appellant sued for injunctive, declaratory and rectification reliefs; the 1st Respondent counterclaimed. The trial Magistrate dismissed the claim, finding an oral agreement to transfer the plots was legally permissible. On appeal, MOGENI J, guided by Selle v Associated Motor Boat Co, re-evaluated the evidence. The court found the 1st Respondent produced no sale agreement, transfer, stamp duty receipt, declaration of value or Land Control Board minutes to substantiate his claim, and that a disposition of land must comply with the mandatory writing requirement of Section 3(3) of the Law of Contract Act. Applying R.G Patel v Lalji Makanji on the standard of proof of fraud, and Section 80 of the Land Registration Act on rectification, the court concluded the transfer was tainted by misrepresentation and illegality. The appeal was allowed, the trial judgment set aside, the Land Registrar Ruiru ordered to revoke the 1st Respondent's titles and register them in the Appellant's favour, and costs of the appeal awarded to the Appellant against the 1st Respondent.

Key legal issues

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01

Standard of proof of fraud

Holding

Fraud must be distinctly pleaded and strictly proved; the Appellant pleaded the facts but the 1st Respondent failed to rebut or substantiate his counter-claim, leaving no credible basis for the transfer

Reasoning

The court restated the R.G Patel standard that fraud requires more than a mere balance of probabilities. The Appellant distinctly pleaded fraud and denied attending the Land Control Board. The 1st Respondent produced no sale agreement, transfer, stamp duty receipt, declaration of value or LCB minutes to substantiate his claim of compensation by gift of the three plots. His counter-claim therefore remained unsubstantiated.

p. 6
02

Requirement of writing under Section 3(3) Law of Contract Act

Holding

The alleged oral agreement to transfer the three plots was unlawful; a disposition of an interest in land must be in writing, signed and attested

Reasoning

Section 3(3) of the Law of Contract Act is in mandatory terms. The 1st Respondent relied on an oral agreement, which cannot sustain a transfer of land. The trial Magistrate erred in treating oral agreements as permissible for land transfers. Absent a written, attested contract, the transfer of the suit properties was illegal and unattainable.

p. 7
03

Duty of first appellate court

Holding

A first appellate court re-evaluates the evidence and draws its own conclusions, but will not interfere with findings of fact unless based on no evidence, misapprehension of evidence, or a wrong principle

Reasoning

Relying on Selle v Associated Motor Boat Co and Ephantus Mwangi v Duncan Mwangi Wambugu, the court rehearsed the evidence, noted the absence of a cost breakdown from the 1st Respondent, and concluded the trial Magistrate's finding of no fraud rested on a wrong appreciation of the registration documents and the missing transfer documentation.

p. 5
04

Rectification of the register under Section 80 Land Registration Act

Holding

Where registration was obtained by fraud or mistake, the court may order rectification and cancellation of the registration

Reasoning

Given that fraud was alleged and prayers involved rectification of the land register, the court considered Section 80 of the Land Registration Act, 2012. Finding misrepresentation or illegality in the transfer, the court directed the Land Registrar Ruiru to revoke the 1st Respondent's titles and register them in the Appellant's name.

p. 6

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence and draw its own conclusions
  • Allegations of fraud must be strictly proved to a standard above a mere balance of probabilities
  • A contract for the disposition of an interest in land must be in writing, signed and attested as required by Section 3(3) of the Law of Contract Act

Court orders

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  1. 1.The Appeal is hereby allowed
  2. 2.The entire Judgment delivered by the trial Court Principal Magistrate Ruiru ELC No. E051 of 2022 on 15/08/2023 is hereby set aside
  3. 3.An order directing the Land Registrar Ruiru to revoke and cancel title in the 1st Respondent's name in Title Numbers Ruiru Kiu Block2/23708, Ruiru Kiu Block2/23709 and Ruiru Kiu Block2/23710 and register the titles in favour of the Appellant
  4. 4.The costs of the Appeal awarded to the Appellant, to be borne by the 1st Respondent

Authorities

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Legislation

  • Land Registration ActSection 80(1) and (2)
  • Law of Contract ActSection 3(3)
  • Evidence ActSections 107, 108 and 109 (as quoted in Jennifer Nyambura Kamau)

Cases cited (13)

  • Eunice Grace Njambi Kamall And Another vs The Hon. Attorney General and 5 Others
    Civil Suit No. 976 of 2012
  • Fletcher vs Peck
    10 US 87 (1810)
  • Edward Muriga (through Stanley Muriga) vs Nathaniel R Schutts
    Civil Appeal No 23 of 1997
  • Motex Knitwear Limited vs Gopites Knitwear Mills Limited
    [2009] eKLR
  • Micheal Njiru Kariuki vs Ferdinand Ndungu Waititu & 3 Others
    [2021] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    (2013) eKLR
  • DGM vs EWG
    [2012] eKLR
  • Party of Independent Candidate of Kenya & Another vs Mutula Kilonzo & 2 Others
    (2013) eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    [2015] eKLR
  • Selle -Vs- Associated Motor Boat Co. Limited
    1968 E.A. 123
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • R.G Patel vs Lalji Makanji
    1957 E.A 314
  • Jennifer Nyambura Kamau vs. Humphrey Mbaka Nandi
    NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR
On appeal from
Principal Magistrate's Court, Ruiru
Ruiru ELC No. E051 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court judgment (Memorandum of Appeal)

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, "Chepkirui v Kusero & another (Environment and Land Appeal E038 of 2023) [2025] KEELC 1458 (KLR)", Case Analysis (2025). Ruiru ELC Appeal (from Ruiru ELC No. E051 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1458/eng@2025-03-24

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