Kibira v Machang’a & another (Environment and Land Appeal E017 of 2025) [2026] KEELC 5333 (KLR)

1. The Appellant herein filed an appeal against the judgment and decree delivered on 30th May 2025 by the Hon. Sandra Achieng Ogot, sitting at the Principal Magistrate Court at Othaya, in MCELC 1 of 2024. 2. The Appellant’s Memorandum of Appeal, dated 3rd June 2025, sets out the following grounds of appeal: a) The learned trial Magistrate erred in law and in fact in reaching a decision that was not supported by evidence produced by the parties, in particular by the following: i. Making a finding that the Appellant had not completed his obligations under the agreement for sale, despite uncontroverted evidence and the Appellant's implied completion. ii. Making a finding that the balance of the Purchase price had not been paid, despite an acknowledgement of receipt of cash and the corresponding value in the Respondent’s estate. ELCA NO.17 OF 2025 Page 2 of 13

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iii. Making a finding that the acknowledgement of cash before the court had been denied by the drawer, when this was not the fact on the record produced before the court. iv. Making a finding that the Deceased purchaser had defaulted in the execution of the contract between the parties by failing to pay the outstanding balance of the purchase price b) The learned trial Magistrate erred in law and in fact by taking into account facts and assumptions not supported by evidence, in particular: a) The assumption was that the signature on the acknowledgement did not belong to the 1st Respondent or the deceased vendor. b) Assuming that obtaining the consent to transfer from the deceased parties was an ongoing process, whilst the same was an indication of the completed process ELCA NO.17 OF 2025 Page 3 of 13

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c) The learned trial magistrate erred in law by misapplying the law on evidence and the burden of proof in civil proceedings, thereby reaching the erroneous conclusion that the Appellant had not proven payment of the purchase price. The learned magistrate erred in law by: a) granting orders in a vacuum, as there was no counterclaim on record. b) Rewriting the terms of the contract between the parties, which is against public policy. 3. The Appellant prayed for the following orders: a) That the judgment dated 30th May 2025 be set aside and varied as follows; b) That the Appellant’s claim before the trial court, being Othaya in MCELC 1 of 2024, Anastasia Wangari versus Joseph Mwangi & Another, be allowed as prayed in the plaint dated 9th January 2024. c) The Appellant be awarded the costs of the Appeal. ELCA NO.17 OF 2025 Page 4 of 13

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d) Any further order the court may think is just and fair in the circumstances of the case. Summary of the suit before the Trial Court. 4. The suit in the trial court, Othaya MCELC 1 of 2024, was instituted vide Plaint dated 9th January 2024, in which the Plaintiff, who is the Appellant herein, averred that at all times material to the suit, Ruth Gathoni Gachuki (Deceased) was the registered owner of LR Othaya/Kihugiru/2837. By agreement dated 10th February 2014, the said proprietor agreed to sell a portion of the suit property measuring approximately 0.101 Ha to Peter Kanyingi Muiga (Deceased) for a purchase price of Kshs.2,500,000/=. 5. The said purchaser took possession of the said portion of the suit land and carried out developments thereon. 6. That by 8th June 2016, the Purchaser had paid the purchase price in full. The Vendor initiated the subdivision of the suit property into LR Othaya/Kihugiru/3024 and 3025, with LR 3024 being the portion to which the Purchaser was entitled, and ELCA NO.17 OF 2025 Page 5 of 13

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obtained the Land Control Board's consent to carry out the subdivision. 7. However, during the transfer of the suit property, the title of LR Othaya/Kihugiru/3024 was found to contain an error on its face, with the vendor’s name recorded as Ruth Gathoni Machang’a instead of Ruth Gathoni Gachuki. 8. The vendor thus applied to the Land Control Board for consent to rectify the error, and consent to the rectification was granted on 16th November 2017. 9. However, the purchaser passed away on 3rd January 2028, before the transfer documents had been lodged. In another unfortunate turn of events, the vendor also passed away on 24th February 2018, before the error on the title had been rectified and the transfer completed. 10. The Plaintiff averred that the defendants have taken up letters of administration over the estate of the deceased vendor, Ruth Gathoni Gachuki. However, they have not recognised the Plaintiff’s claim over the suit property as a creditor to the estate, nor have they recognised the Plaintiff as a bona fide purchaser. ELCA NO.17 OF 2025 Page 6 of 13

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11. The Plaintiff thus prayed for an order of specific performance compelling the Defendants to transfer LR Othaya/Kihugiru/3024 to the Plaintiff, and, in default, for the Court administrator of this Court to execute the documents necessary for the transfer of the suit property. 12. The 1st Defendant filed a statement of defence confirming that she is the administrator of the estate of Ruth Gathoni Gachuki(Deceased), and also confirmed that the deceased defendant did agree to the sale of the suit property. 13. However, the 1st Defendant stated that only a deposit of Kshs.350,000/= was paid to initiate the subdivision process, and that the transfer of the suit property was conditional upon payment of the full purchase price, with the balance remaining at Ksh.2,150,000/=. 14. The 1st Defendant’s case is that, as a result of the failure to show proof of the purchase price, the estate of the deceased Plaintiff was deemed a creditor of the Estate of Ruth Gathoni Gachuki (Deceased), with a net liability of Kshs.350,000/=. Accordingly, the 1st Defendant’s case is that the transfer process could not be completed because of non-payment of the ELCA NO.17 OF 2025 Page 7 of 13

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full purchase price, and that the order of specific performance cannot issue. 15. The suit was heard on 20 March 2025, and PW 1, the Plaintiff, adopted her witness statement and the bundle of documents dated 29 October 2024, in which she reiterated the contents of her Plaint. During cross-examination, she stated that her deceased husband, whom she represents, had paid the balance of the purchase price but did not have receipts to prove the payment. She also noted that she did not have express consent from her co-administrator to sue in this case. 16. DW 1, the 1st Defendant, also adopted his witness statement and the bundle of documents. He stated that he was not involved in any such sale of the suit property. He denied knowledge of any subdivision and also denied knowledge of whether the deceased parties attended the Land Control Board. 17. Judgment was delivered by the Trial Court on 30th May 2025, holding that the Plaintiff did not prove that her late husband had paid the balance of the sale price. Accordingly, the relief of specific performance was not available to the Plaintiff, as the deceased Plaintiff had not adhered to the terms ELCA NO.17 OF 2025 Page 8 of 13

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of payment of the consideration. The Court dismissed the Plaintiff’s suit and ordered that the estate of Ruth Gathoni Gichuki (Deceased) refund the deposit of Kshs.350,000/= to the estate of Peter Kanyingi Muiga (Deceased), with costs to the 1st Defendant. It is this decision that the Appellant seeks to appeal from. 18. The Appellant filed written submissions, which the Court has duly read and considered. Analysis and Determination 19. To re-evaluate the findings of the Trial Court, this appellate Court must look into the evidence that was presented by the parties, as held in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, and summarised as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to reevaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” ELCA NO.17 OF 2025 Page 9 of 13

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20. The Appellant’s claim was against the estate of Ruth Gathoni Gachuki (Deceased). The parties do not dispute that Ruth Gathoni Gachuki (Deceased) was the registered owner of LR Othaya/Kihugiru/2837 and entered into an agreement dated 10th February 2014 to sell a portion of the suit property measuring approximately 0.101 Ha to Peter Kanyingi Muiga (Deceased) for a purchase price of Kshs.2,500,000/=. 21. However, the issue in dispute was the payment of the purchase price. The Plaintiff exhibited the agreement for sale but did not produce any evidence of payment of the balance of the purchase price. In the Kenyan context, the burden of proof lies with the party seeking the Court's belief in the facts they have presented. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 22. The Court of Appeal in the case of Mbuthia Macharia v. Annah Mutua Ndwiga & Another [2017] eKLR discussed the issue of the discharge of the burden of proof as follows: ELCA NO.17 OF 2025 Page 10 of 13

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“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant. It was upon the appellant to prove that he did not affix his signature on the transfer of the suit premises in favour of the 1st respondent. “ 23. I concur with the judgment of the Trial Court that the fact that the deceased parties obtained consent from the Land Control Board to subdivide the land does not inherently imply that the purchase price was fully paid, as the Board does not have the responsibility to verify such payment; therefore, such confirmation cannot be presumed. The Appellant was responsible for demonstrating that the deceased purchaser had paid the entire purchase price, for the Court to grant specific ELCA NO.17 OF 2025 Page 11 of 13

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performance of the agreement and order the transfer of the suit property in his name. The Court of Appeal, in the case of Benard Nganga Ndirangu v Samuel Wainaina Tiras [2019] KECA 741 (KLR), articulated the following regarding the contractual remedy of specific performance. “On the issue whether the trial court erred in issuing an order for specific performance, we reiterate that specific performance is an equitable remedy. In Thrift Homes Limited – v- Kenya Investments Limited [2015] eKLR it was stated that specific performance like any other equitable remedy is discretionary. The jurisdiction to grant specific performance is based on the existence of a valid enforceable contract; specific performance will not be ordered if the contract suffers from some defect, mistake or illegality. Specific performance will also not be granted if there is an alternative effective remedy.” 24. In a nutshell, the Appellant failed to prove that the agreement for sale was complete and enforceable; thus, the Trial Court did not err in its decision. 25. The Appeal is hereby dismissed, with costs. ELCA NO.17 OF 2025 Page 12 of 13

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Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026. E. K. MAKORI JUDGE In the Presence of: Mr Gichuki for the Appellant Denis - Court Assistant In the Absence of: Mr Sichangi for the Respondent ELCA NO.17 OF 2025 Page 13 of 13

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