REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC APPEAL NO. E006 OF 2021
CHARLES KYENGO MANGOKA............................................APPELLANT
-VERSUS-
MORRIS KIMOLE NGUKU (Deceased) substituted by JAMES WAMBUA KIMOLE ...................................................................................RESPONDENT
(Being an appeal from the judgment of Hon. C. A. Mayamba, PM dated 18th June, 2021 in Kilungu Principal Magistrate’s court MECL No. E052 of 2018)
JUDGMENT
1. The Appellant filed an appeal to this court in which he raised the following grounds:
1) That the learned magistrate erred in law and in fact when he failed to appreciate that the Appellant in his pleadings specifically in paragraph 8 of the plaint. That the title of the land No. 754 Kiongwani adjudication section had already been issued and therefore consent was not necessary under Section 30 of the Land Adjudication Section Cap. 284.
2) That the learned magistrate erred in law and in fact when he failed to appreciate that the defence did not deny the existence of the title or prove otherwise.
3) That the learned magistrate erred in law and in fact when he raised the issue of the jurisdiction when infact thre was no mateirla facts before him to deal with issue.
4) That the learned magistrate erred in law and in fact when he failed to appreciate the appropriate time when consent is required to contemplated under Section that of Cap 284.
5) That the learned magistrate erred in law and in fact when he failed to appreciate that the register is always declared complete by the time title deeds are issued.
6) That the learned magistrate erred in law and in fact when he failed to consider that there was an alternative prayer for which the court had jurisdiction.
7) That the learned magistrate erred in law and in fact when he failed to apply improper standards of proving this case instead of using the standards of proof of balance of probabilities.
8) That the learned magistrate erred in law and in fact when he failed to consider the Appellant’s evidence before him in entirely including the Appellant’s submission and the issues addressed therein.
9) That the learned magistrate erred in law and in fact when he dismissed the Appellant’s case against the weight of the evidence.
2. The Appellant had sued the Respondent at Kilungu Principal Magistrates Court in which he sought the following reliefs:
a. An order compelling the Defendant to transfer parcel of land No. 754 – Kiongwani Adjudication Section to the Plaintiff.
b. Alternatively the Defendant to refund the Plaintiff Kshs.70,000/= within interest at commercial rate of 18% since the year 2007.
c. Costs of this suit.
3. The case was fully heard and was dismissed with no orders as to costs on 18th June, 2021. This is what prompted the Appellant to file this appeal to this court.
4. The parties were directed to file written submissions. As at the time of writing this judgment on 23rd December, 2025, it is only the Appellant who had filed his submissions dated 4th October, 2025.
5. I have gone through the proceedings in the lower court, as well as the grounds of appeal and submissions of the Appellant. This being a first appeal to this court, my duty was clearly stated in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others EA 123 where it was stated as follows:
“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.
6. The issues which emerge for determination are firstly, whether the trial magistrate had jurisdiction to entertain the suit. Secondly, whether there was a valid sale agreement entered into between the Appellant and Morris Kimole Nguku (deceased). Thirdly, was there evidence that the Appellant paid Kshs.70,000/= to the deceased. Fourthly which order should be made on costs.
Whether the trial magistrate had jurisdiction to entertain the suit
7. The Appellant had sued Morris Kimole Nguku (Deceased) who died before the suit was heard to conclusion. His son James Wambua Kimole took over the case. There is no doubt that parcel No. 754 fell within Kiongwani Adjudication which was ongoing. Section 30 of the Land Adjudication Act provides as follows:
1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under Section 29 (3) of this Act.
2) Where any such proceedings were begun before the publication of the notice under Section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.
3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Cabinet Secretary whose decision shall be final.
4) The foregoing provisions of this section do not prevent a final order or decision of a court made or given in proceedings concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not the subject of an appeal and the time for appeal has expired.
5) A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication section shall be conclusive evidence that the land is such land.
6) Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.
8. There is no doubt that no one raised the issue of jurisdiction. It is the trial magistrate who raised it in his judgment and found that he had no jurisdiction to entertain the Appellant’s claim. The law is clear that jurisdiction is fundamental and the same cannot be conferred upon a magistrate by consent or silence of the parties. Though the Appellant had averred at paragraph 6 that he reliably learned in 2018 that title over parcel 754 had been issued, he did not adduce any evidence that title had been issued. If indeed he knew that title had been issued in 2018, then why was he not giving the title number in his pleadings which were filed in 2018?
9. The fact remains that Kiongwani Adjudication Section is one of the Adjudication Sections within Makueni County which are to be fully settled. As the Kiongwani Adjudication Section is going on, the Appellant was under obligation to obtain consent to file the suit. The court is barred by Section 30 of the Land Adjudication from entertaining any suit where adjudication is going on. The trial magistrate was therefore correct in finding that he had no jurisdiction to entertain the Appellant’s suit.
Whether there was a valid sale agreement entered into between the Appellant and Morris Kimole Nguku (deceased)
10. Section 3(3) of the Law of Contract Act Cap 23 provides as follows:
“No suit shall be brought upon a contract for disposition of an interest in land unless –
a. The contract upon which the suit is founded:-
i. Is in writing;
ii. Is signed by all the parties thereto; and
b. The signature of each party signing has been attested by a witness who is present when the contract was signed by such party”.
11. The sale agreement was allegedly made on 27th October, 2007. On this date it is only the Appellant and the Deceased who were present. The agreement was not signed by the Appellant who is a teacher. The agreement was purportedly signed by the deceased. There were no witnesses to attest the signature of the deceased. During the hearing, evidence which emerged is that the deceased was over 90 years old. He was a village elder and did not know how to read or write. During cross examination, the Appellant confirmed that there were no witnesses present; that he is the one who wrote the agreement; that the deceased was selling the land on behalf of his son Nduva; that he forgot to sign the agreement and that it is Leonard Kimole who signed the agreement on behalf of the deceased.
12. It is therefore clear that the sale agreement was not signed by the parties involved and there was no one who witnessed the agreement. The name of the deceased which appears as his signature must have been written by the Appellant who admits that he is the one who wrote the agreement. Leonard Kimole would not have signed on behalf of the deceased when he was not present on 27th October, 2007. I therefore find that there was no valid sale agreement between the Appellant and the deceased.
Was there evidence that the Appellant paid Kshs.70,000/= to the deceased
13. The manner in which the Appellant alleges to have paid the purchase price is very doubtful. During the first time of meeting with the deceased, the Appellant allegedly gave the deceased Kshs.2,000/= as bus fare. There was no acknowledgement of this amount as none of those present on 27th October, 2007 singed. On 6th November, 2017 the Appellant alleges to have given the deceased Kshs.2,000/= and Kshs.200/= as fare on unknown date. The Appellant stated that as at 24th December, 2007 he had paid a total of Kshs.22,400/=. There was no acknowledgment of the amount on the part of the deceased.
14. On 5th February, 2009, the Appellant alleged to have given the deceased Kshs.5,000/=in the presence of his son Leonard Kimole Nguku. The money was for bus fare for the deceased to go and bring Nduva on whose behalf the deceased was selling the land. On 29th August, 2008, the Appellant allegedly paid the deceased Kshs.2,000/= being fare to go and ascertain why Nduva was not coming. There was no witness present but the deceased who did not know how to read or write is alleged to have signed an acknowledgment of the Kshs.2,000/=.
15. On 14th October, 2008, the deceased who was in the company of his son Leonard Kimole collected Kshs.20,000/=. All those present signed. The balance was Kshs.20,600/=. The balance of Kshs.20,600/= was allegedly collected by the deceased on 24th October, 2008. The deceased did not sign as acknowledging the payment of the balance.
16. There is no clear evidence that the deceased was paid Kshs.70,000/==. The trial magistrate considered the evidence of payment and found it doubtful. I have also found that there are serious doubts as to whether the Kshs.70,000/= was paid. What is more curious is that the land was being sold on behalf of the deceased’s son Nduva. There is no evidence that the said Nduva ever received even a coin of the alleged payment of Kshs.70,000/=.
17. One of the grounds of appeal is that the trial magistrate did not consider the alternative prayer for refund of Kshs.70,000/=. The trial magistrate considered this alternative claim and found that the Appellant had failed to prove the payment. He went on to state that had he found that the Appellant had paid Kshs.70,000/= he would have allowed the claim with interest at court rates to run from 2008.
18. There was no valid sale agreement between the Appellant and the deceased. The Appellant did not obtain consent of the Land Adjudication Officer to file the suit and did not prove that he paid the purchase price. The trial magistrate was therefore correct to dismiss the Appellant’s suit. I find that the Appellant’s appeal is devoid of merit. The same is dismissed with no orders as to costs as the Respondent did not participate in the appeal.
...............................................
HON. E. O. OBAGA
JUDGE
JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
In the absence of parties who were aware of the date of delivery of judgment.
Court Assistant – Steve Musyoki
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