Muthondwe v Makueni County Sand Conservation & Utilization Authority (Environment and Land Case E056 of 2021) [2026] KEMC 416 (KLR)
The bottom line
#A Makindu court dismissed a landowner's sand-harvesting claim against Makueni County because an oral 'gentleman's agreement' over land is not legally enforceable in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff is the registered proprietor of land parcel number Nguumo/Syumile A/299
- 2.Whether there was an agreement between the plaintiff and the defendant for the harvesting and collection of sand on land parcel number Nguumo/Syumile A/299
- 3.Whether the defendant breached the terms of the agreement
- 4.Whether the plaintiff is entitled to the reliefs sought
- 5.Who should bear the costs of the suit
Key legal issues
#Proof of ownership of the suit land
The plaintiff proved ownership of parcel Nguumo/Syumile A/299 by producing a copy of the title deed, with no contrary evidence
The plaintiff produced in evidence a copy of the title deed indicating he is the registered proprietor. The defendant, though served, neither attended the hearing nor called witnesses, so the ownership claim stood uncontradicted. The court accordingly found the plaintiff to be the owner of the parcel of land in issue.
Existence and enforceability of the alleged agreement
The plaintiff failed to prove a legally acceptable and enforceable agreement with the defendant
The plaintiff alleged an oral 'gentleman's agreement' but did not prove consideration, offer and acceptance, certainty of terms or intention to create legal relations. Any agreement over sand harvesting on his land would constitute a disposition of an interest in land, requiring writing under section 3(3) of the Law of Contract Act. Further, the defendant is a body corporate and no authorized representative was identified as having contracted with the plaintiff.
Breach of the agreement and entitlement to reliefs
No breach was established since no enforceable agreement existed, and no evidence supported trespass, non-payment or environmental damage
Without an agreement there can be no breach. The plaintiff produced no survey report, photographs, videos, licences, hydrogeologist's report or agricultural officer's report to prove harvesting on his land, salinity of the well or crop damage. His land was not designated as a sand utilization site under section 27 of the Makueni County Sand Conservation and Utilization Act, and section 35 does not entitle landowners to payment. The court cannot enforce an illegality.
Legal principles established
#- Failure by a defendant to call evidence does not automatically entitle the plaintiff to judgment; the plaintiff must adduce credible evidence that proves the claim on a balance of probabilities
- An alleged oral 'gentleman's agreement' for the disposition of an interest in land is unenforceable under section 3(3) of the Law of Contract Act, which requires a written contract signed by all parties with attested signatures
- Transactions involving a body corporate must be entered into by authorized representatives
Court orders
#- 1.The suit is dismissed with costs to the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit on land and sand-harvesting dispute before the Environment and Land Court at Makindu
Relief refused
#Permanent injunction restraining the defendant from entering, trespassing and harvesting sand on the plaintiff's land
No evidence that the defendant entered, trespassed on or harvested sand from the plaintiff's land; injunction cannot issue without evidence of continuing or threatened violation
Order that the plaintiff be paid for sand harvesting and collection by lorry owners
The lorry owners were not joined to the suit and their identity is unknown; no evidence that landowners are entitled to payment under section 35 of the Makueni County Sand Conservation and Utilization Act
Costs
The suit was dismissed with costs to the defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing, I find that the plaintiff has failed to prove his case against the defendant on a balance of probabilities. Consequently, I proceed to DISMISS the suit with costs to the defendant.
The foregoing reveals that just because the defendant fails to call evidence, it is not automatic that the plaintiff’s claim must be allowed.
It is my finding that the plaintiff has miserably failed to prove the existence of a legally acceptable and enforceable agreement between him and the defendant.
The court cannot enforce an illegality.
In my view, an injunction cannot be issued as a matter of course. There must be evidence of violation, either continuing or threatened.
Issues in the judgment
#The plaint relies on a provision said not to exist in the county statute
Delivery date of 16th July 2026 appears inconsistent with a suit filed in 2021 and heard earlier; judgment dated in the future
Judgment records that three documents were produced but only two are on the record
The judgment cites the same Court of Appeal authority under two different spellings, 'Karugi' and 'Kirugi'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthondwe v Makueni County Sand Conservation & Utilization Authority (Environment and Land Case E056 of 2021) [2026] KEMC 416 (KLR)", Case Analysis (2026). Makindu ELC Case No. E056 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/416/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.