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ELCDismissedAppeal from Nyahururu CM ELC No. 226 of 2018 (Nyahururu CMCC No. 104 of 2018)· [2025] KEELC 3308 (KLR)

Mucheke & another v Muraya (Environment and Land Appeal 73 of 2023) [2025] KEELC 3308 (KLR)

Environment and Land Court
27 March 2025
3,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld a buyer's claim to 2 acres bought in 1994 without a written agreement, because decades of occupation and part payment proved the sale.

What this practically means

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Executive summary

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This is a first appeal against a judgment of the Nyahururu Chief Magistrate's Court (CM ELC No. 226 of 2018) which decreed the Respondent, Michael Muraya Rarai, 2 acres out of the former Nyandarua/Ol'aragwai/1255 (now Nyandarua/Ol'aragwai/4897), a permanent injunction and Kshs.52,700/- for felled trees. The Respondent claimed the 2 acres were bought for him in 1994 by his late employer James Kiarie Muikia from the 1st Appellant, that he occupied and developed the land, paid survey fees, and obtained a North Kinangop Land Disputes Tribunal award adopted as a decree in Nyahururu Land Dispute Case No. 32 of 2006, which the Appellants defeated by transferring and subdividing the land and cutting 17 trees. The Appellants argued privity, want of a cause of action, res judicata via pending Nakuru HCC No. 19 of 2011, and that the Tribunal lacked jurisdiction over title. On appeal, Mugo Kamau J held the Tribunal acted ultra vires the repealed Land Disputes Tribunal Act in ordering transfer of title, so its award was a nullity ab initio, citing James Alukoye Were v Lurambi Division Land Disputes Tribunal. However, res judicata was not proved as the fate of the Nakuru suit was unknown, and the evidence established a sale transaction, part payment, survey fees paid by the Respondent, and continuous occupation since 1994 under the pre-2003 proviso to section 3(3) of the Law of Contract Act. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to land

Holding

The Tribunal acted ultra vires the Land Disputes Tribunal Act when it ordered transfer of the land, so the award adopted as a decree was a nullity; however, the trial court's judgment could still stand on the pleaded sale transaction and occupation

Reasoning

Section 3(1) of the repealed Act limited Tribunals to boundary disputes, claims to occupy or work land, and trespass. By ordering the 1st Appellant to transfer the 2 acres, the Tribunal usurped power to determine title. The court relied on James Alukoye Were v Lurambi Division Land Disputes Tribunal to hold the award void, yet found the appeal could not succeed on the evidence of the underlying transaction.

p. 6
02

Res judicata based on pending Nakuru High Court Civil Suit No. 19 of 2011

Holding

The court could not find res judicata because the fate of the Nakuru suit was not proved

Reasoning

The Appellants relied on a pending suit as a shield, but produced only the pleadings and did not prove its outcome. A pending suit also does not establish res judicata, which requires a prior final decision on the same matter between the same parties.

p. 5
03

Whether the Respondent acquired an interest in the suit land despite no written sale agreement

Holding

The Respondent's family's long occupation, development, burial of a relative, payment of survey fees and part payment of the purchase price proved the sale transaction and his claim

Reasoning

The contract of sale was in 1994, before the 2003 amendment of section 3(3) of the Law of Contract Act; the proviso preserved suits in part performance where the purchaser took possession. The Appellants admitted receiving Kshs.33,000/- from the late Kiarie and never demanded the balance in their pleadings. The evidence of PW2 to PW6 corroborated occupation since 1994.

p. 6

Legal principles established

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  • Land Disputes Tribunals under the repealed Land Disputes Tribunal Act No. 18 of 1990 had no jurisdiction to determine title to land or order transfer of land; such an award is a nullity ab initio
  • A party in occupation in part performance of a contract for disposition of an interest in land may maintain the claim notwithstanding the absence of a written agreement under the proviso to the pre-2003 section 3(3) of the Law of Contract Act

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Appellants to pay costs of the appeal to the Respondent
On appeal from
Chief Magistrate's Court, Nyahururu
Nyandarua CM ELC No. 226 of 2018 (Nyahururu CMCC No. 104 of 2018)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the magistrates' court (ELC appeal from Nyahururu CM ELC No. 226 of 2018)

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, "Mucheke & another v Muraya (Environment and Land Appeal 73 of 2023) [2025] KEELC 3308 (KLR)", Case Analysis (2025). Appeal from Nyahururu CM ELC No. 226 of 2018 (Nyahururu CMCC No. 104 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3308/eng@2025-03-27

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