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ELCOtherMadiany PMELC No. E009 of 2023 (Appeal)· [2025] KEELC 5248 (KLR)

Anumo v Asoi & another (Environment and Land Appeal E010 of 2024) [2025] KEELC 5248 (KLR)

Environment and Land Court
10 July 2025
5,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against the judgment and decree of Hon. E. Malesi (Principal Magistrate) delivered on 13/03/2024 in Madiany PMELC No. E009 of 2023. The appellants challenged the trial court's validation and enforcement of a sale agreement dated 17th September 2017 over a portion of parcel Uyoma/RagengnI/2062, arguing that the 2nd appellant lacked capacity having no grant of representation, that the agreement was altered to insert 0.4Ha, and that the transaction was void for want of Land Control Board consent under sections 6, 7 and 8 of the Land Control Act. The 1st respondent maintained the agreement satisfied section 3(3) of the Law of Contract Act, that he took vacant possession after full payment, and that the appellants could not raise new issues on appeal. The court framed six issues. It held that the capacity and LCB consent grounds were new issues never pleaded or canvassed at trial, and that documents annexed to submissions could not be admitted as evidence without leave; it applied Kenya Hotels Ltd v Oriental Commercial Bank and related authorities. It further held that equity, a constitutional principle under Article 10(2)(b), would not allow parties who admitted an agreement and allowed possession to defeat it by invoking the Land Control Act. The court upheld the trial judgment's grant of specific performance but found no evidence supported the assumption that 0.4Ha was purchased, remitting the matter to the Principal Magistrate's Court at Madiany to determine the exact size of the portion occupied by the plaintiff. No orders as to costs were made.

Key legal issues

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01

Introduction of new issues and evidence on appeal

Holding

The appellants introduced new issues (capacity of the 2nd appellant and lack of Land Control Board consent) and documents (grant, certificate of confirmation, death certificate) that were never pleaded or canvassed at trial; the court declined to entertain them

Reasoning

The court reviewed the pleadings, submissions, proceedings and judgment of the trial court and found that neither capacity nor absence of LCB consent featured in the pleadings, evidence or submissions. The new documents annexed to submissions were not part of the trial record. Relying on David Sironga Ole Tukai v Francis Arap Muge, Kenneth Nyaga Mwige, Daniel Toroitich Arap Moi and Kenya Hotels Ltd v Oriental Commercial Bank, the court held parties are bound by their pleadings and submissions cannot substitute evidence.

p. 6
02

Sections 6, 7 and 8 of the Land Control Act

Holding

The trial magistrate did not misdirect himself by not considering sections 6, 7 and 8 of the Land Control Act since the issue was never pleaded or raised at trial, and equity would not allow the defendants to defeat an admitted agreement after granting possession

Reasoning

Because the LCB consent issue was new on appeal, it fell away. The court further held that equity, elevated as a national value under Article 10(2)(b) of the Constitution and applicable via section 3(1) of the Judicature Act, would not permit parties to invoke the statute to defeat an agreement they admitted entering and under which they allowed possession.

p. 7
03

Validity and enforceability of the agreement for sale dated 17th September 2017 and specific performance

Holding

The trial magistrate correctly found the agreement complied with section 3(3) of the Law of Contract Act and that specific performance was warranted, except that the size of the portion sold was never established by evidence

Reasoning

The court agreed with the trial court's application of the Reliable Electrical Engineers principles: the agreement was written, signed and witnessed; no undue influence was pleaded; and the plaintiff took vacant possession. However, the trial court's assumption that 0.4Ha was purchased was unsupported by evidence and the acreage issue required determination under sections 97, 98 and probably 71 of the Evidence Act, a matter for the trial court.

p. 9

Legal principles established

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  • A party cannot introduce new issues or evidence on appeal that were not pleaded or canvassed at trial without leave of the court; submissions cannot take the place of evidence
  • It is unconscionable for parties who entered an agreement, admitted it and allowed possession to use the law (including lack of Land Control Board consent) to defeat that agreement

Court orders

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  1. 1.The judgment of the trial court dated 13/03/2024 is upheld subject to ascertainment of the portion of land occupied by the plaintiff pursuant to the agreement dated 17/9/2017
  2. 2.The matter is remitted to the Principal Magistrates Court at Madiany for determination on the singular issue of the exact size of the portion occupied by the plaintiff
  3. 3.No orders as to costs of the appeal
On appeal from
Principal Magistrate's Court, Madiany
Madiany PMELC No. E009 of 2023
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

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, "Anumo v Asoi & another (Environment and Land Appeal E010 of 2024) [2025] KEELC 5248 (KLR)", Case Analysis (2025). Madiany PMELC No. E009 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5248/eng@2025-07-10

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