Mwangangi v Mwangangi & another

iv. The learned trial magistrate erred in law and in fact by not awarding the Appellant the costs of the suit. 3. The facts of the case according to the Appellants who were the Plaintis are as follows. One, on 2-6-1987 the two Plaintis entered into a sale agreement with the Defendant whereby the Defendant sold one share of his shares with Mathengeta Farmers Company Limited to the Plaintis. Each Plainti was in eect buying half a share. Two, the Plaintis occupied the land immediately and built their homesteads thereon. They have since utilized the land unhindered and without any objection from the Defendant. Three, the agreement was witnessed by the Defendant’s wife Joyce Kivinya, the mother of the three parties since they are all brothers, Ruth Ndululu and their sister Teresia Mbatha. Four, in the year 2018, the Defendant threatened to evict the Plaintis from the land even though they had lived thereon for many years after paying the full purchase price. Five, on investigating the status of the property, the Plaintis found out that the Defendant had amalgamated the suit land with another parcel and obtained one title deed for the two parcels. Six, even though they had purchased 2.9 acres, the title deed for some of the land that they occupied was known as Makuyu/Kambiti/Block 2/1008 and is only 0.8 Ha in size. When the survey exercise was carried out, the Plaintis were not at home and they had entrusted their mother with the task. Finally, the property is the only home that the Plaintis know as home and they had even buried one of their kin thereon. 4. The facts of the case according to the Defendant are as follows. One, he was a member of Mathengeta land buying company and he was allocated L.R No. Makuyu/Kambiti/Block 2/282 as his share. He was issued with a title deed for the said land in the year 1992. He allowed the Plaintis to build on the suit land and till the same as they had nowhere else to build. They have been living on the suit land with the consent of the defendant. Two, later, he bought L.R Nos. Makuyu/Kambiti/Block2/285 and 286 from one Wilson Kithome. Three, in the year 2019, the Plaintis started making demands to the Defendant that he gives them half of the land claiming that it belonged to their late father and it was their share of inheritance. The Defendant refused to accede to their demands. The dispute was referred to the Chief and the DO at Makuyu but there was resolution. Finally, the Defendant denied having sold the land to the Plaintis and asked the Court to dismiss their suit. 5. In his judgment dated 2-11-2023, the learned trial magistrate found the oral agreements valid and further found that the Defendant acquired the title deed to the suit land unprocedurally for failing to consider the portion bought and occupied by the Plaintis. 6. Counsel for the parties led written submissions dated 6-12-2024 and 16-10-2025. The Appellant’s counsel identied two (2) issues for determination in the appeal. 7. i. Burden and standard of proof. ii. Validity of the sale agreement. This being a rst appeal, this Court has a duty to do the following in considering the appeal. Firstly, it must re-evaluate, re-assess and reconsider the evidence presented before the trial Court. Secondly, it must make its own independent conclusion based on that evidence. Thirdly, it should bear in mind that it did not hear and see the witnesses and therefore make allowance for this limitation. Finally, it must exercise its own independent judgment. This was the holding in the case of Selle Vs Associated Motor Boat Co. Ltd [1968] EA 123 by the East African Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18264/eng@2025-12-16 2

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8. I have carefully considered the appeal in its entirety including the grounds of appeal, the entire record and the written submissions by the learned counsel for the parties. I agree with the learned counsel for the Appellant that the two issues as identied will determine the appeal conclusively. 9. On the rst issue, I nd there is sucient evidence adduced by the Respondents and their sister Ruth Ndululu to prove that the Appellant sold the suit land to the respondents and that they paid full purchase price before they occupied the land. In making this nding, I have relied on the evidence adduced by the Respondents before the trial Court and corroborated suciently in material particulars by the evidence of Ruth Ndululu. In contradistinction, the evidence by the Appellant stands alone uncorroborated by any other independent evidence. I nd that the respondents fully discharged the burden placed on then by the law which is proof on a balance of probabilities. 10. Regarding the second issue of the sale agreement, I nd that Appellant did acknowledge selling the suit land to the Respondents as per the two acknowledgments on record both dated 2-6-1987. While it is true that sale agreements are mandatory in case of a disposition of an interest in land, the proviso in Subsection 3(3) of the Law of Contract Act creates two exceptions to this rule. They include, a. Sale by an Auctioneer and b. Situations where one party creates a resulting, implied or a constructive trust. The proviso reads as follows. “ Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap 526), nor shall anything in it aect the creation of a resulting, implied or constructive trust”. 11. The facts of this case are similar to those in the case of Willy Kimutai Kitilit Vs Michael Kibet Civil Appeal No. 51 of 2015, Eldoret. In the case, the registered owner put the buyer in possession of the disputed land after payment of the full purchase price. The seller never obtained the consent of the Land Control Board as required by Section 6 of the Land Control Act (Cap 302). Later when the seller sought to refund the purchase price and recover the land that he had sold, the dispute ended up in Court. The Court of Appeal held as follows, inter alia, that the buyer having fully paid the purchase price and taken possession, a constructive trust was created in favour of the buyer and the seller became a trustee of the buyer. Both Section 30(g) of the Registered Land Act (Cap 300), now repealed and Section 28(b) of the Land Registration Act recognize trusts and customary trust as overriding interests even if they are not noted in the register. In this case, the Respondent’s occupation of the suit land from 1987 after having paid the full purchase creates an overriding interest over the Appellant’s title to the suit land. This means that a sale agreement was not necessary in the rst place and even the ones produced in evidence in this case are superuous. 12. In conclusion and for the reasons already given, I nd no merit in the Appellant’s appeal which I dismiss and make the following orders. a. A declaration is hereby issued that the Respondents are the owners of all that property known as Makuyu/Kambiti/Block2/285 measuring 1.3260 Ha. b. A permanent injunction is hereby issued against the Appellant or anybody claiming under him from interfering with the Respondent’s possession of the said land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18264/eng@2025-12-16 3

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c. The Appellant to transfer all the land described in (a) above to the Respondents and in default the Deputy Registrar to execute all instruments necessary to ensure the registration of the Respondents as owner of the land described in (a) above. d. If any title has been issued for the land occupied by the Respondents, such title to be cancelled in so far as it concerns the Respondents’ land. e. To foster harmony between the parties who are all brothers, each party to bear its own costs in this Court as well as in the lower Court. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 16TH DAY OF DECEMBER, 2025. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Mwangi Njonjo Appellant’s Counsel – Absent Respondent’s Counsel – Mr. Morigori https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18264/eng@2025-12-16 4

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