Meshack Mutinye v Nashon Cheto Mukunga

for the third harvest. He maintained that Peter had the authority to lease the land and prayed for the court to grant the relief sought. 4. CW2 Peter Mukunga testified that he is the eldest son of the late Joash, who owned land parcel No. 835. His father had four wives, and Peter’s mother, now deceased, used to live on the said land. Peter testified that their father had divided his land among his children before he died in 2018. According to him, the division was done in 2010 in the presence of a surveyor, and a map was used to guide the process. He testified that he was allocated 1½ acres on parcel 835, which he used for farming. In 2017, due to a need for a school fee, he leased his portion to the claimant after receiving Kshs. 70,000 out of an agreed Kshs. 150,000. He testified that they executed a lease agreement, and the claimant harvested sugarcane twice without incident. However, during the third harvest, Nashon stopped the claimant, uprooting the crop using a tractor. 5. The matter was reported to the Chief and later to the OCS, but no resolution was reached. He added that although no succession had been done, his father had already given him the land during his lifetime, and he did not require consent to lease it out. He denied owning parcel No. 360 and insisted that his rightful portion was within parcel No. 835. The proceeds of the lease, he said, were used to pay school fees. 6. On cross-examination, he testified that some of his siblings agreed with the land arrangements made by their father, while others did not. He admitted their father was sick at the time of the lease agreement and that he did not seek his father's permission before leasing out the land. He also testified that his mother died in 1967 and was buried in Bungoma, and his earlier statement that she was buried on the land was a lie. 7. He acknowledged that he is currently living in Magira on a portion known as parcel No. 360, but said he did not know its exact number. He testified that he had land in two portions, and their father had not formally subdivided them. He claimed to have a sketch map showing how the land was divided among the brothers, but he could not specify the sizes. 8. CW3, Geoffrey Simiyu, an Agricultural Officer, testified that he conducted a damage assessment on 1.5 acres of leased land following a request from the OCS Kabras. He visited the site with two police officers and found that a second ratoon crop had been uprooted without the Claimant’s consent. 9. He valued the damage based on land preparation, labour, transport, and fertilizer costs. The total loss was estimated at Kshs. 40,500. He compiled a report dated 18.2.2022, which he produced as Exhibit 6, and confirmed that the crop had been destroyed. 10. The Respondent, Nashon Cheto Mukunga testified as DW2 and stated that he did not know the Appellant until the Chief summoned him over the dispute. He denied that the Appellant ever leased land from his brother, Peter Mukunga, and maintained that the land in question belonged to their late father, Joash Mukunga, who passed away in 2018. He produced a copy of a land search (DEXH 1) to support this claim. 11. He testified that the lease agreement, alleged to have been made in 2017, was invalid as their father was alive at the time and was not involved. He claimed the agreement was fake because the land is located in Shivakala, yet the agreement refers to "the Kwara area." He also stated that he first saw the agreement after his arrest concerning allegations of uprooting sugarcane and being taken to Butali Court. He added that mediation was attempted but halted after summons were issued. 12. He maintained that the land was being used by his mother, Rita Mukunga, and that Peter had never used the land. He attempted to produce a document (DMFI 2), allegedly prepared by their late father, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 2

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to show that the land was allocated to his family. Still, the court declined to admit it as an exhibit, ruling it could only be verified through a succession court. 13. DW1 further testified that the agricultural officer never contacted him and visited a different parcel of land. He denied uprooting sugarcane and asserted there was no sugarcane on the disputed land at the time. 14. DW1 testified that there was no sugarcane on the land and admitted he had no proof of any crops like maize being planted. He confirmed seeing the agricultural officer’s report, but had no expert report to counter it. He denied being a party to the lease agreement and stated his name did not appear in it. He maintained the land belonged to his late father and that no succession had been done, though he believed the land had been given to his family. 15. He stated that Peter had no authority to lease the land and that he was not present during the alleged lease. He denied uprooting sugarcane and said the land had no clear boundaries. He testified that his mother used part of the land and that the claimant had not planted sugarcane there. 16. Upon evaluating the evidence adduced by both parties, the trial court found in favour of the Respondent and awarded Kshs. 40,500 as damages for the uprooted sugarcane, together with the costs of the suit. 17. The Appellant was dissatisfied with the decision of the Adjudicator and filed appeal in Civil Appeal No. 109 of 2022, in which he raised one ground of appeal, being that the learned Adjudicator erred in law and fact by declining to Award him Kshs. 80,000/= and prayed that the amount of Kshs. 40,500/ = be set aside, and the claim of Kshs. 80,000/= is allowed in toto. 18. Equally aggrieved by the decision of the learned Adjudicator, the Appellant lodged a Memorandum of Appeal in which it set down the grounds of appeal as follows: - 19. 1. The Honourable Magistrate erred in law and fact in failing to make a finding on the legality of the lease agreement dated 25/10/107, whereby the purported Lessor was not the owner of the Lease property and held no registrable interest in the Lease property. 2. The Honourable Magistrate erred in law and fact in relying on a lease agreement that was null and void ab initio while arriving at her judgment. 3. The Honourable Magistrate erred in law and fact in failing to admit into evidence the Appellant’s document. 4. The Learned Magistrate erred in law and fact in finding that the Appellant had destroyed the Respondent’s crops when no evidence was adduced to that effect. 5. The Learned Magistrate erred in fact and law in awarding Kshs. 40,500 for the seed cane upon finding that the Respondent did not incur any cost for the allegedly uprooted crop. 6. The Learned Magistrate erred in law and fact in failing to consider the evidence and submissions of the Appellant. 7. The appellant is to be awarded costs of the appeal and of the lower court. On 20th February 2025, when the matter came up for directions, this court allowed that the two appeals, being High Court Civil Appeal No.102 of 2022 and HCCA No. 109 of 2022, be consolidated and that it be disposed of by way of written submissions. The file No. HCCA No. 109 is the lead file. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 3

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Respondent’s Submissions 20. The Respondent submitted that the Small Claims Court lacked jurisdiction to entertain the matter, as the claim revolved around a contested land lease touching on rights of use and occupation of land which fall within the exclusive jurisdiction of the Environment and Land Court (ELC) under Article 162(2)(b) of the Constitution and Section 12 of the Small Claims Court Act. It was argued that the validity of the lease agreement had to be determined first before assessing the alleged damage, and since that issue involved land rights, the Small Claims Court acted ultra vires. To buttress his argument, the Respondent cited Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] and Macfoy v United Africa Company Ltd [1961] 3 All ER 1169, which emphasized that proceedings conducted without jurisdiction are null and void. 21. The Respondent contended that the trial court failed to determine the legality of the lease dated 25th October 2017, which was central to the claim. It was the Respondent’s position that Peter Mukunga, who purported to lease the land to the Appellant, had no legal interest in or authority over the subject property (L.R. No. SOUTH KABRAS/SHAMBERERE/835), as the land belonged to their late father, Joash Mukunga. The Respondent further submitted that at the time of the alleged lease, the father was alive, had not given consent, and was not a signatory to the agreement. 22. Further, the Respondent contended that the purported lease lacked a description of the land, was not registered as required under Section 43(2) of the Land Registration Act, and could not confer any enforceable rights. Citing Ragwe v Abongo (Civil Appeal E028 of 2020) and Mega Garment Ltd v Mistry Javda Parbat & Co (EPZ) Ltd (2016) eKLR. The Appellant argued that unregistered leases of immovable property give no protection against third-party rights. 23. It was submitted that the lease was void from the outset, as Peter Mukunga held no proprietary interest in the land. Citing Section 23(1) of the Sale of Goods Act, the Appellant emphasized that one cannot convey a better title than he holds. Therefore, since the lessor had no title or beneficial interest, the lease was legally ineffectual, and the entire claim based on it ought to have collapsed. 24. The Respondent submitted that there was an error of law and fact in the trial court, having found him liable for the destruction of sugarcane, when there was no direct evidence linking him with the act. The Respondent said that the Appellant had the burden under Sections 107 and 108 of the Evidence Act to prove the involvement of the Respondent in the act. However, none of the witnesses, including the Appellant, the purported lessor (DW2), and the Agricultural Officer, ever saw or witnessed the Respondent uprooting the cane. The case lacked evidence to support the claim and, therefore, should have failed. 25. The Appellant did not put in any submissions. Analysis and Determination 26. I have considered the pleadings, the record of the trial court, the grounds of appeal, and the submissions filed by the Respondent and find that the main issues for determination are:i. Whether the Small Claims Court had jurisdiction to determine the dispute. ii. Whether the appeal raised points of law. iii. Whether any of the appeals is merited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 4

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27. This being an appeal from Small Claims Court, the jurisdiction of this court is governed by section 38 of the Small Claims Court Act, which provides as follows:“ (1) A person aggrieved by the decision or an order of the court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.” Jurisdiction of the Small Claims Court 28. The first issue for determination is on the jurisdiction of the Small Claims Court. 29. Jurisdiction is everything; without it, a court has no power to make one more step. This was firmly settled in the celebrated case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA held that jurisdiction is conferred by the Constitution or statute and cannot be implied or inferred. 30. The Respondent argued that the case involved questions of land ownership and usage, which are within the purview of the Environment and Land Court (ELC). However, upon reviewing the pleadings, I find that the Appellant’s claim in the Small Claims Court was confined to seeking damages for the destruction of crops. The Appellant did not pursue a declaration of ownership, subdivision, or adjudication of proprietary rights over the land. 31. Section 12 of the Small Claims Court Act, 2016, confers jurisdiction on the Small Claims Court to determine civil claims not exceeding Kshs. 1,000,000/= including claims for debt, contract breaches, or damages due to tort, provided they can be heard and resolved in a summary manner without complex issues. The Appellant’s claim was for KShs. 80,100/= (assessed at Kshs. 40,500/=) in damages for the destruction of sugarcane crops, arising from a lease agreement over a portion of L.R. No. South Kabras/Shamberere/835. 32. In Muiruri v Kimemia [2003] eKLR, the Court of Appeal held that a court has jurisdiction to hear a matter if the substance of the claim falls within its statutory mandate, even if incidental issues relate to matters reserved for another court. The Small Claims Court was tasked with determining whether the Respondent suffered loss due to the Appellant’s actions, a tortious claim well within its jurisdiction under Section 12(1)(c) of the Small Claims Court Act, which includes claims for damages. 33. Section 3 of the Small Claims Court Act promotes expeditious and affordable resolution of disputes, aligning with Article 159(2)(c) of the Constitution, which encourages alternative dispute resolution. Requiring the Appellant to pursue this claim in the ELC would defeat the purpose of the Small Claims Court, especially given the modest value of the claim. 34. In my view, the Court had jurisdiction to inquire into the existence of a lease for the limited purpose of establishing whether there was a contractual relationship giving rise to a claim for damages. 35. I therefore find that the learned Adjudicator did not err in assuming jurisdiction over the matter. 36. The second issue is whether the appeals raise issues of law to warrant this court's interference with the lower court's decision. 37. Section 38 of the Small Claims Court Act restricts the High Court from re-evaluating factual findings or substituting the trial court’s assessment of evidence. The Court’s role is to examine whether https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 5

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the learned Adjudicator applied the law correctly, misapprehended legal principles, or acted outside jurisdiction. 38. The principle was underscored by Hon. Justice DKN Magare in Direct Line Assurance Company Limited vs. Nyawa (Civil Appeal 157 of 2022) [2023] KEHC 20201 (KLR), where he held: “ The jurisdiction of this court when exercising appellate powers under Section 38 of the Small Claims Court Act is limited strictly to questions of law. This court cannot interfere merely because it would have reached a different conclusion on the evidence. The trial court’s findings of fact are binding unless they were based on no evidence or on a misapprehension of the evidence.” 39. Similarly, in Equity Bank Ltd v Gerald Wang’ombe Thuni [2023] KEHC 21184 (KLR), the court reiterated that an appeal from the Small Claims Court must raise a pure question of law, not a contestation of factual findings or quantum. 40. A “matter of law” was further defined in Kenya Breweries Ltd v Godfrey Odoyo [2010] KECA 498 (KLR), where the Court stated that: “ A question of law arises when the tribunal below misapprehends the applicable law, applies wrong legal principles, or acts in disregard of the rules of natural justice.” 41. Guided by the above authorities, this Court must therefore determine whether any of the Appellants have demonstrated any misapplication of the law, misdirection on legal principles, or breach of statutory or procedural requirements by the Adjudicator. 42. The lease agreement dated 25th October 2017 was executed by the Appellant and one Peter Mukunga, a son of the registered proprietor, the late Joash Mukunga. The Respondent challenges its validity because Peter had no registrable interest in the land. 43. It is not in dispute that, as of 2017, the property was still registered in the name of the late Joash, and succession had not been undertaken. In Ragwe v Abongo, Civil Appeal No. E028 of 2020 [2021] eKLR, the Court of Appeal emphasized that one cannot lease out or confer rights in land where he has no proprietary interest, and any such lease is ineffectual against the true owner. 44. The Respondent cites Mega Garment Ltd v Mistry Javda Parbat & Co (EPZ) Ltd [2016] eKLR and Section 23(1) of the Sale of Goods Act, Cap. 31, to argue that Peter could not confer a better title than he held. 45. The evidence adduced by CW2 (Peter Mukunga) was that his father, Joash Mukunga, had divided L.R. No. SOUTH KABRAS/SHAMBERERE/835 among his children in 2010, allocating Peter 1½ acres. Peter leased this portion to the Respondent for sugarcane cultivation, receiving Kshs. 70,000 toward an agreed Kshs. 150,000. The lease agreement was produced, and the Appellant harvested two cycles without interference, suggesting acquiescence by the family. 46. While the land remained registered in Joash Mukunga’s name, and no succession had been undertaken, the Court of Appeal in Macharia Mwangi Maina & 87 Others v Davidson Ngibuini Kuguru [2016] eKLR recognized that informal family arrangements for land use, such as those under customary law, can confer possessory rights enforceable in specific contexts, particularly where third parties act in reliance on such arrangements. The Appellant relied on Peter’s representation of authority, and the lease was executed in 2017, before Joash died in 2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 6

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47. The lack of registration under Section 43(2) of the Land Registration Act does not render the lease void for the purposes of a tortious claim, as the Respondent’s possession was lawful at the time of the alleged destruction. 48. In Joseph Kipchirchir Koech v Eliud Kipngeno Ngeno [2019] eKLR, the Court of Appeal held that a lease agreement, though unregistered, may still confer possessory rights sufficient to sustain a claim for interference with use. 49. The lease herein could not operate to transfer any registrable interest in land, since Peter was neither the proprietor nor an administrator of the estate. However, I note that the Respondent’s claim was not premised on the enforcement of land rights but rather on damages flowing from an arrangement in which he had invested in sugarcane cultivation with the consent of one in occupation. Though legally defective regarding the Land Registration Act, the agreement nonetheless formed evidence of a contractual arrangement between Peter and the Respondent. 50. The Small Claims Courts are not bound by strict Rules of evidence. The jurisdiction of the Small Claims Court is set out in Section 12 as follows; 1. Subject to this Act, the Rules and any other Nature of claims and pecuniary law, the Court has jurisdiction to determine civil claim jurisdiction. relating to— a. contract for the sale and supply of goods or services; b. contract relating to money held and received; c. liability in tort in respect of loss or d. damage caused to any property or for the delivery or recovery of movable property; e. compensation for personal injuries; and set-off and counterclaim under any contract. f. Without prejudice to the generality of subsection (1), the Court may exercise any other civil jurisdiction as may be conferred under any other written law. g. The pecuniary jurisdiction of the Court shall be limited to two hundred thousand shillings. Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the Court as the Chief Justice thinks fit.” 51. In that context, I am persuaded that the trial court was entitled to treat the lease as a contractual arrangement under section 12 (1) (d) even if it did not amount to a registrable interest in land. The trial court correctly found the lease valid for the Respondent’s claim; hence, this ground of appeal fails 52. On whether the Respondent destroyed the Appellant’s crops, the Respondent contends that there was no direct evidence linking him to the destruction of the Appellant’s sugarcane crop, as required under Sections 107 and 108 of the Evidence Act, Cap. 80. The Appellant (CW1) testified that the Respondent uprooted the crop using a tractor, corroborated by CW2 (Peter Mukunga). CW3 (Geoffrey Simiyu), an Agricultural Officer, confirmed the destruction of a second ratoon crop and assessed the damage at Kshs. 40,500/= 53. The burden of proof lay with the Appellant under Sections 107 and 108 of the Evidence Act to establish, on a balance of probabilities, that it was the Respondent who uprooted the sugarcane. The Court of Appeal in Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 stressed that the burden https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 7

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of proof in civil cases never shifts, and a party must rely on the strength of his case rather than the weakness of the defence. 54. The trial court, having seen and heard the witnesses, preferred the testimony of the Appellant’s witnesses over that of the Respondent. 55. In respect of the ground that the Adjudicator erred in law and in fact in failing to admit the Respondent’s document as evidence, the said document was stated to be a will by the deceased Respondent’s father. It had not been proved through probate. The trial court was, therefore, right to reject it. 56. As an Appellate court, we will not interfere with the trial court's findings of fact unless it is demonstrated that the court misapprehended the evidence or that the finding was based on no evidence at all. 57. On the issue of assessment of the damages, the Agricultural Officer’s report assessed the damage at Kshs. 40,500/=. The trial court awarded the same figure. The Respondent has argued that since the Appellant did not incur costs for seed cane, no award should have been made. 58. Regarding the Appellant’s appeal, I am persuaded that the trial court properly relied on expert evidence to quantify the loss. There is no issue of law raised in the said appeal and the award of Kshs. 40,500/= was well founded in evidence and in law hence the Appellant’s appeal for enhancement must fail. 59. The trial court’s judgment reflects consideration of both parties’ evidence, including the Appellant’s testimony and the land search (DEXH 1). The court’s focus on the tortious claim, rather than a succession dispute, was appropriate. In Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Court of Appeal emphasised that a trial court must demonstrate consideration of all evidence, which the trial court did. 60. In the result, I find no merit in the two appeals and make the following orders:a. The appeal is hereby dismissed. The judgement and decree of the Small Claims Court in Kakamega SCCC E052 of 2022 is upheld in its entirety. b. Costs of this appeal assessed at Kshs. 50,000/ is awarded to the Respondent. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 31ST DAY OF OCTOBER 2025. A. C. BETT JUDGE In the presence of: Ms. Rauto for the Appellant No appearance for the Respondent Court Assistant: Polycap https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19702/eng@2025-10-31 8

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