Samuel Chepyego & Simion Chebotibin v Johana Chepsongol Tobose (Substituted with Ziporah Tabosei)
The bottom line
#The Environment and Land Court in Kabarnet confirmed that a 1994 oral land sale, backed by possession, is legally valid in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent purchased or leased the suit plot
The trial court's finding that the Respondent purchased the plot was sound; the offer to refund the purchase price was inconsistent with a lease, and the Respondent remained in possession
The court re-evaluated the evidence: the 1st Appellant offered to refund money received, which is inconsistent with a lessor/lessee relationship. The Respondent took possession in 1994, planted trees and developed the land. The trial magistrate heard and observed the witnesses' demeanour and was entitled to prefer the Respondent's account. The Appellants failed to discharge the Section 116 Evidence Act burden of proving the possessor had no interest.
Validity of an oral contract for the sale of land
The 1994 oral sale was valid; the pre-2003 version of Section 3(3) of the Law of Contract Act preserved suits founded on part performance where the purchaser took possession, and equity's doctrines of constructive trust and proprietary estoppel remain unaffected
The transaction occurred in 1994, before the amendment of Section 3(3). The then-existing proviso exempted intending purchasers in possession in part performance. The court applied Willy Kimutai Kitilit, noting that the writing requirement does not affect resulting, implied or constructive trusts, and that the trial magistrate's reference to mutual trust between the related parties aligned with equity's intervention against unconscionable conduct.
Alleged bias, extraneous considerations and failure to conduct a site visit
No bias or extraneous matter was demonstrated; occupation and possession need not be by living on the land, and the absence of a site visit was not fatal
The Respondent testified the plot was water logged so construction was impossible, but he planted trees and utilized it. Occupation and possession need not be by residing on the land. The criminal case against the Respondent demonstrated his occupation. The Appellants did not demonstrate how the magistrate was biased or relied on extraneous evidence.
Legal principles established
#- A first appellate court will not ordinarily interfere with findings of fact by the trial court unless based on no evidence, a misapprehension of the evidence, or wrong principles
- Under Section 116 of the Evidence Act, where a person is shown to be in possession of property, the burden of proving he is not the owner lies on the person who affirms he is not the owner
- An oral land sale agreement predating the 2003 amendment of Section 3(3) of the Law of Contract Act, coupled with part performance and possession, is recognized in law
Court orders
#- 1.The appeal is dismissed
- 2.The Appellants shall meet the Respondent's costs both in the appeal and in the court below
- On appeal from
- Magistrate's Court at Kabarnet
- ELC CASE NO. 16 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Magistrates' Court in environment and land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Chepyego & Simion Chebotibin v Johana Chepsongol Tobose (Substituted with Ziporah Tabosei)", Case Analysis (2026). ELCLA NO. E004 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5472/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.