Njagi (Suing as the Legal Representative of the Estate of the Late Justus Njagi Paul) v Mugwimi (Environment and Land Appeal E007 of 2024) [2025] KEELC 5902 (KLR)

3. It was her case that the late Justus paid the expenses and legal fees in full which amounted to Kshs. 269,500/= to both E.M Mutahi & Co. Advocates and Njeru Ithiga and Co. Advocates. Further, that Stephen Murithi Mugwimi transferred an acre out of Ngandori/Kirigi/835 to the Appellant but the Respondent refused to transfer an acre out of Ngandori/Kirigi/836 which had been subdivided into Ngandori/Kirigi/13768 to 13779. The Appellant’s claim was that the Respondent failed to honour his part of the agreement despite the Appellant contributing towards the subdivision costs for that parcel of land and also assisting in marking its boundaries. The Appellant laid claim to Ngandori/ Kirigi/13769. 4. Before the trial court, the Respondent took the position that the agreements referred to by the Appellant were unenforceable for being time barred pursuant to Sections 4 and 7 of the Limitation of Actions Act. He also contended that if any money was paid, then it was paid by the late Justus for his benefit and the benefit of his brother Stephen Murithi Mugwimi and not for his benefit. He asserted that he solely paid the firm of advocates who represented him in the matters over the years being the firm of Njeru Ithiga & Co. Advocates and denied that the late Justus ever paid any legal fees on his behalf. He challenged the receipts produced by the Appellant as proof of payment of fees claiming that they were clear that he was not a beneficiary and added that they did not disclose the purpose for the payment. 5. The trial court heard the parties and in its judgment delivered on 20/2/2024 found that the late Justus did not comply with the terms of the sale agreement and that the agreement was not enforceable. The court found that the Appellant had failed to prove her claim and dismissed the suit while ordering each party to bear its costs. 6. Aggrieved by that decision, the Appellant lodged this appeal and faulted the Learned Magistrate for finding that the suit was statute-barred and for concluding that the agreement between her late husband and the Respondent together with his brother was not enforceable. The Appellant urged the court to set aside the decision of the Learned Chief Magistrate and allow the appeal. 7. The issues that fall for determination in this appeal are whether there was a valid and enforceable agreement between the late Justus and the Respondent; whether the Appellant’s claim was timebarred under the Limitation of Actions Act; and lastly, whether the Appellant is entitled to land parcel Ngandori/Kirigi/13769 or its equivalent value. 8. The Respondent does not deny the existence of the agreements, which form the substratum of this dispute. The court has examined the agreements.The agreement made on 17/4/2004 was between Justus N. Paul and James Kariuki Mugwimi, the Respondent in this matter and Stephen Murithi Mugwimi. Under that agreement, the late Justus was to meet the legal expenses and fees in respect of Embu SPMCC No. 18 of 1994 involving Mugwimi Kabuthi and Stephen Murithi Mugwimi and Another until the conclusion of the matter. In return, both the Respondent and Stephen Murithi Mugwimi undertook to give the late Justus two acres of land after the case was finalised. The arrangement was that James Kariuki Mugwimi was to provide the two acres from his land Ngandori/ Kirigi/836 following which Stephen Murithi Mugwimi would compensate James with an acre from his own land being Ngandori/Kirigi/835. The agreement was signed by all the parties and witnessed by E.N Mutahi Advocate. 9. There was a subsequent memorandum of understanding made in 2008 between Stephen Muriithi W. Mugwimi, the Respondent and the late Justus which stipulated that upon Stephen Muriithi W. Mugwimi and James Kariuki Mugwimi Wilson being registered as proprietors of Ngandori/Kirigi/835 and 836 respectively, they would each transfer an acre from their respective parcels to the late Justus. The transfer of the land was a reimbursement for the costs incurred by the late Justus in pursuing https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5902/eng@2025-06-05 2

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Embu High Court Civil Appeal No. 24 of 2002. It had been agreed that the deceased would meet all the costs associated with the dispute and that he would also bear the full costs of subdividing his rightful share from the two parcels. The two parcels of land were to be transferred to him inclusive of all developments on the land and that he would also cater for the legal fees, including stamp duty and government registration fees. The memorandum of understanding was signed by all the parties and witnessed by Njue Njeru advocate. 10. In determining the validity of the agreement upon which the Appellant's claim is founded, the court must consider whether the transaction between the deceased and the Respondent complied with Section 3(3) of the Law of Contract Act, Cap 23, which stipulates that no suit should be brought on a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties, and their signatures are attested by a witness who was present at the time of signing. The trial court found that there was a valid agreement for the disposition of an interest in land between the late Justus and the Respondent. There is no reason to interfere with that finding. 11. The question that arises is whether the agreements are enforceable. The Respondent’s main argument was that the agreements are unenforceable for being time barred. The trial court upheld this argument, reasoning that the agreement dated 17/4/2004 formed the basis of the claim, and since the suit was filed on 9/12/2017, which was more than 12 years later, it was statute-barred under Sections 4(1) and 7 of the Limitation of Actions Act. 12. The agreement dated 17/4/2004 provided that the transfer of land would occur after the conclusion of Embu SPMCC Case No. 18 of 94 while the memorandum of understanding provided that transfer of the land would happen after Stephen and James were registered as the absolute proprietors of parcel numbers 835 and 836. From the testimony of Njeru Ithiga the advocate who represented the Respondent in Embu SPMCC Case No. 18 of 94, the case was not finalised until 2016 or 2017. The late Justus could only have enforced the agreement upon conclusion of the case in 2016 or 2017 and not in 2004. The suit filed in 2017 was thus within time. 13. The other question that arises is whether the Appellant is entitled to Ngandori/Kirigi/13769 or to land of an equivalent value. The Appellant maintained that her late husband honored his part of the agreement by paying all the legal fees for the case and that he was therefore entitled to an acre out of parcel 836 in line with the agreement. She specifically claimed land parcel 13769, which resulted from the subdivision of parcel number 836. She stated in her testimony that she paid for the subdivision of the Respondent’s land parcel 836. She produced a bundle of receipts to prove that the late Justus made payments. Some of the receipts were issued in the name of the late Justus while others were issued in the Respondent’s name. 14. The Respondent denied that the late Justus paid the legal fees for him. It was his contention that the late Justus only made payment from 2002 to 2004 and that no other payment was made from 2005 to 2016 and that he paid the legal fees with the assistance of Anderson Mureithi & Kariuki. He denied that the Appellant met the subdivision costs and claimed that he personally paid for the costs. He did not tender evidence to prove that he paid the legal fees and subdivision costs. 15. The Respondent only produced three receipts from E.M. Mutahi & Co. Advocates each for Kshs. 1,000/= and two from Njeru Ithiga & Co. Advocates, which were identical to those produced by the Appellant. These are receipt number 4848 dated 15/2/2010 for Kshs. 5,000/= and receipt number 4086 dated 9/8/2016 for Kshs. 25,000/=. During cross examination, the Respondent’s advocate acknowledged that he issued those same receipt numbers 4848 and 4086, upon payment being made by the Appellant even though it was clear they were issued to the Respondent. If the Appellant paid https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5902/eng@2025-06-05 3

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those amounts and receipts were issued in favour of the Respondent, it can be inferred that the late Justus made similar payments on the Respondent’s behalf in the earlier transactions. 16. There was no evidence to suggest that the late Justus had any other legal matters that were being handled by the firm of Njeru Ithiga & Co. Advocates or E.M Mutahi Advocates at the material time that would explain why he made payment of legal fees to those law firms. The payments made by the late Justus to the advocates must have been in fulfilment of the agreement with the Respondent. It is noteworthy that even though the original receipts were issued in the Respondent’s name, they were retained by the Appellant. The Respondent’s explanation that he does not know how the receipts came into the Appellant’s possession was not plausible. Taken together, these facts strongly support the conclusion that the payments were indeed made by the late Justus and the Appellant on behalf of the Respondent in accordance with the agreement. There was no dispute regarding the authenticity of the receipts produced. 17. The burden of proof lies on the party who wishes the court to believe the existence of certain facts. In this case, the Appellant produced original receipts which were in her possession, which, on the face of it, support her assertion that the late Justus paid legal fees on behalf of the Respondent. While the agreement did not specify the exact amount that was to be paid as legal fees, the evidence presented by the Appellant supports the conclusion that the late Justus substantially fulfilled his end of the bargain. The Respondent did not provide evidence to rebut this position or to prove that it was actually he who made the payments in question. 18. The Appellant proved on a balance of probabilities that the late Justus discharged his obligations under the agreement. The judgment of the trial court is hereby set aside. 19. Judgment is entered in favour of the Appellant as follows: a. The Respondent shall transfer an acre, specifically land parcel Ngandori/Kirigi/13769, to the Appellant within 60 days. b. The Appellant is awarded the costs of the suit and of the appeal. DELIVERED VIRTUALLY AT EMBU THIS 5TH DAY OF JUNE 2025. K. BOR JUDGE In the presence of: Ms. Wanjiku Kamochu for the Appellant Mr. Gitahi Kibui for the Respondent Diana Kemboi- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5902/eng@2025-06-05 4

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