[1] This appeal arises from the judgment and decree issued in Oyugis Senior Principal Magistrate’s Civil Case No. 57 of 2014: David Miroga Rangondi v James Matara Matwere in which the appellant had sued the respondent for Kshs. 200,000/= together with interest and costs on the foot of a land sale agreement that was not seen through to completion. The appellant had averred, in his Plaint dated 10 th June 2014 that he bought a piece of land measuring 50 feet by 100 feet from the respondent; and that before obtaining ownership, tribal clashes erupted in Sondu area which forced the appellant to seek refuge elsewhere.
[2] He further averred that when calm returned, he went back and requested the defendant to transfer the land to his name but the respondent declined to ensure completion of the transaction, and instead proceeded to sell the piece of land to a third party. In the premises, the appellant filed the lower court suit seeking to recover the purchase price paid together with interest and costs.
[3] The respondent denied the appellant’s allegations vide his Statement of Defence dated 5 th August 2014. While conceding that there was a sale agreement between him and the appellant as alleged, the respondent denied that the appellant paid him Kshs. 200,000/= on diverse dates or that he acknowledged receipt of that amount. He further averred that he only resorted to selling the property five years after the appellant failed to fulfil his part of the bargain by failing to pay the balance of Kshs. 50,000/= of the agreed purchase price. In the circumstances he was neither liable to refund the sums paid to him by the appellant nor interest thereon. To the contrary the respondent filed a counterclaim seeking to be paid Kshs. 450,000/= by the appellant in accordance with the terms of their contract which stipulated that the party in breach would be liable to pay three times the contract value.
[4] Upon hearing the parties, the learned magistrate delivered her judgment dated 3 rd February 2022 and found that indeed the appellant had failed to prove payment of the balance of the purchase price in the sum of Kshs. 50,000/=. She accordingly dismissed the appellant’s suit with no order as to costs. She likewise dismissed the respondent’s counterclaim contending that in the circumstances it was unjustified.
[5] Being dissatisfied with the decision of the trial court, the appellant filed the instant appeal herein on the grounds that:
[a] The learned magistrate erred in law and in fact by finding that the appellant dismally failed to prove his case on a balance of probability against the respondent.
[b] The learned magistrate erred in law in failing to correctly evaluate documentary evidence tendered by the appellant thereby arriving at the wrong conclusion.
[c] The learned magistrate erred in law by failing to adequately consider the appellant’s evidence, submissions and authorities relied on hence arrived at a wrong conclusion and judgment.
[d] The learned magistrate erred in fact and in law in finding that there was no way a transfer could be effected before the appellant cleared the balance of Kshs. 50,000/=.
[e] The learned magistrate misdirected herself fundamentally in rejecting the claim for refund of the purchase price.
[6] Accordingly, the appellant prayed that his appeal be allowed and that the judgment of the lower court be reversed, set aside, varied or quashed; and that the Court be pleased to ward costs of the appeal and the lower court to him. He also prayed for any other or further orders as may be just and expedient in the circumstances.
[7] The appeal was canvassed by way of written submissions. The appellant filed submissions dated 14 th March 2023. He restated the factual basis of his appeal and submitted that he entered into a land sale agreement with the respondent; and that the same was reduced into writing and signed by all the parties under Section 3(3) of the Law of Contract Act. He pointed out that the said agreement was produced before the lower court as an exhibit. On the authority of Nelson Kivuvani v Yuda Komora & another, Nairobi High Court Civil Case No. 956 of 1991, the appellant urged the Court to find that the said agreement was valid for all intents and purposes in so far as it met the requirements of Section 3(3) of the Law of Contract Act.
[8] On whether there was breach of the said agreement, the appellant urged the Court to take into consideration that the respondent expressly admitted that the purchase price was Kshs. 200,000/= and that he had received a sum of Kshs. 150,000/= on the 29 th November 2006. The appellant contended that since time was not of essence to the contract, the learned magistrate erred by concluding that the purchase price was irrecoverable. In his submission the land sale agreement had become void due to failure to obtain the consent of the Land Control Board; and therefore the deposit was automatically converted into a debt recoverable from the respondent.
[9] The appellant relied on Halsbury’s Laws of England (4 th Edition, Vol. 9 at paragraph 481) and the case of Aida Nunes v John Mbindyo Njonjo & another [1962] 1 EA 88, among other authorities in urging the Court to find that it was the respondent who was in breach by selling the land to a third party without any form of notice to him. It was therefore his contention that the learned magistrate erred in law in not directing the respondent to refund the consideration paid to him, thereby unjustly enriching the respondent by causing him to retain the land and the purchase price paid by him. In this regard, the appellant referred to Madhupaper International Ltd and another v Kenya Commercial Bank Ltd and 2 others [2003] eKLR.
[10] Accordingly, the appellant prayed that his appeal be allowed and orders granted as set out in his Memorandum of Appeal.
[11] The respondent, on his part, summarized the parties’ pleadings and evidence before the lower court and pointed out that at paragraph 12 of his Defence, he denied the jurisdiction of the lower court to handle the matter on account of the provisions of Section 4(1) of the Limitation of Actions Act. He therefore submitted that since the agreement was made on 29 th November 2006, the appellant’s suit for recovery of the consideration paid thereon ought to have been filed within 6 years. Thus, the respondent raised the issue of whether the appellant could, in law, bring the said suit 8 years after the date of the sale agreement as he did. He urged the Court to resolve that question in his favour. He relied on Chirchir Arap Kuto v Nancy Cherotich Koech & another [2022] eKLR to buttress his submissions.
[12] This being a first appeal, it is the duty of this Court to re-evaluate the evidence that was placed before the lower court and make its own conclusions thereon. The words of Sir Clement de Lestang, VP, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, are apt, namely, that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 due allowance in this respect..."
[13] However, before a merit evaluation of the evidence presented before the lower court, it is imperative for the Court to determine the issue of jurisdiction as raised by the respondent. This is because jurisdiction is a threshold issue that must be disposed of in limine , as otherwise, the Court would be acting in vain. In the Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited [1989] KLR 1 the Court of Appeal held:
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[14] Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [ 2019] eKLR thus:
“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae...”
[15] Hence, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[16] Needless to add that the issue of jurisdiction can be raised at any time, even on appeal. In Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] eKLR the Court of Appeal held:
“…It would therefore have been prudent for the appellant to raise the question of jurisdiction before the superior court as that way this court would have had the benefit of reasoning of the superior court on the issue. However, we must now determine whether the issue of jurisdiction can be properly raised by the appellant at this stage. In Floriculture International Ltd v Central Kenya Ltd & 3 Others (1995) eKLR, the court held that the issue of jurisdiction can be argued at any time. The court remarked as follows:
“It has been held in the case of Kenidia Assurance Co. Ltd v Otiende (1989) 2 KAR 162 that the normal rule that a party could not raise for the first time on appeal a point he had failed to raise in the High Court, did not, and could not apply when the issue sought to be raised de novo on appeal went to jurisdiction.”
The reasoning is that even where the question of jurisdiction is not raised that does not necessary confer jurisdiction on the court if it has none. Accordingly, we find that the appellants are not precluded from raising the jurisdictional issue for the first time on appeal having not raised it in the superior court…”
[17] The point was restated by the Court of Appeal in Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] eKLR thus:
“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:
“….at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself;
- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”
(See All Progressive Grand Alliance (APGA) v. Senator Christiana N.D. Anyanwu & 2 others , LER [2014] SC. 20/2013 Supreme Court of Nigeria). We agree with these authorities and, hold that the question of jurisdiction was properly raised before this Court because, as they say in Latin, ex nihilo nihil fit (out of nothing comes nothing).”
[18] The question posed by the respondent herein is whether the learned magistrate had the jurisdiction to entertain the lower court suit granted the clear provisions of Section 4(1) of the Limitation of Actions Act. The provision states:
(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law .
[19] It is manifest therefore that, to the extent that the lower court suit was filed in June 2014 about 8 years from the date of the agreement, the suit was time-barred.
[20] For those reasons, the appeal is incompetent and is accordingly struck out. As to whether the appellant should be condemned to pay costs, I have taken into consideration the applicable principles as set out by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR. The Court held:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[21] In the circumstances hereof, the justice of the case dictates that each party bears own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026
[2] He further averred that when calm returned, he went back and requested the defendant to transfer the land to his name but the respondent declined to ensure completion of the transaction, and instead proceeded to sell the piece of land to a third party. In the premises, the appellant filed the lower court suit seeking to recover the purchase price paid together with interest and costs.
[3] The respondent denied the appellant’s allegations vide his Statement of Defence dated 5 th August 2014. While conceding that there was a sale agreement between him and the appellant as alleged, the respondent denied that the appellant paid him Kshs. 200,000/= on diverse dates or that he acknowledged receipt of that amount. He further averred that he only resorted to selling the property five years after the appellant failed to fulfil his part of the bargain by failing to pay the balance of Kshs. 50,000/= of the agreed purchase price. In the circumstances he was neither liable to refund the sums paid to him by the appellant nor interest thereon. To the contrary the respondent filed a counterclaim seeking to be paid Kshs. 450,000/= by the appellant in accordance with the terms of their contract which stipulated that the party in breach would be liable to pay three times the contract value.
[4] Upon hearing the parties, the learned magistrate delivered her judgment dated 3 rd February 2022 and found that indeed the appellant had failed to prove payment of the balance of the purchase price in the sum of Kshs. 50,000/=. She accordingly dismissed the appellant’s suit with no order as to costs. She likewise dismissed the respondent’s counterclaim contending that in the circumstances it was unjustified.
[5] Being dissatisfied with the decision of the trial court, the appellant filed the instant appeal herein on the grounds that:
[a] The learned magistrate erred in law and in fact by finding that the appellant dismally failed to prove his case on a balance of probability against the respondent.
[b] The learned magistrate erred in law in failing to correctly evaluate documentary evidence tendered by the appellant thereby arriving at the wrong conclusion.
[c] The learned magistrate erred in law by failing to adequately consider the appellant’s evidence, submissions and authorities relied on hence arrived at a wrong conclusion and judgment.
[d] The learned magistrate erred in fact and in law in finding that there was no way a transfer could be effected before the appellant cleared the balance of Kshs. 50,000/=.
[e] The learned magistrate misdirected herself fundamentally in rejecting the claim for refund of the purchase price.
[6] Accordingly, the appellant prayed that his appeal be allowed and that the judgment of the lower court be reversed, set aside, varied or quashed; and that the Court be pleased to ward costs of the appeal and the lower court to him. He also prayed for any other or further orders as may be just and expedient in the circumstances.
[7] The appeal was canvassed by way of written submissions. The appellant filed submissions dated 14 th March 2023. He restated the factual basis of his appeal and submitted that he entered into a land sale agreement with the respondent; and that the same was reduced into writing and signed by all the parties under Section 3(3) of the Law of Contract Act. He pointed out that the said agreement was produced before the lower court as an exhibit. On the authority of Nelson Kivuvani v Yuda Komora & another, Nairobi High Court Civil Case No. 956 of 1991, the appellant urged the Court to find that the said agreement was valid for all intents and purposes in so far as it met the requirements of Section 3(3) of the Law of Contract Act.
[8] On whether there was breach of the said agreement, the appellant urged the Court to take into consideration that the respondent expressly admitted that the purchase price was Kshs. 200,000/= and that he had received a sum of Kshs. 150,000/= on the 29 th November 2006. The appellant contended that since time was not of essence to the contract, the learned magistrate erred by concluding that the purchase price was irrecoverable. In his submission the land sale agreement had become void due to failure to obtain the consent of the Land Control Board; and therefore the deposit was automatically converted into a debt recoverable from the respondent.
[9] The appellant relied on Halsbury’s Laws of England (4 th Edition, Vol. 9 at paragraph 481) and the case of Aida Nunes v John Mbindyo Njonjo & another [1962] 1 EA 88, among other authorities in urging the Court to find that it was the respondent who was in breach by selling the land to a third party without any form of notice to him. It was therefore his contention that the learned magistrate erred in law in not directing the respondent to refund the consideration paid to him, thereby unjustly enriching the respondent by causing him to retain the land and the purchase price paid by him. In this regard, the appellant referred to Madhupaper International Ltd and another v Kenya Commercial Bank Ltd and 2 others [2003] eKLR.
[10] Accordingly, the appellant prayed that his appeal be allowed and orders granted as set out in his Memorandum of Appeal.
[11] The respondent, on his part, summarized the parties’ pleadings and evidence before the lower court and pointed out that at paragraph 12 of his Defence, he denied the jurisdiction of the lower court to handle the matter on account of the provisions of Section 4(1) of the Limitation of Actions Act. He therefore submitted that since the agreement was made on 29 th November 2006, the appellant’s suit for recovery of the consideration paid thereon ought to have been filed within 6 years. Thus, the respondent raised the issue of whether the appellant could, in law, bring the said suit 8 years after the date of the sale agreement as he did. He urged the Court to resolve that question in his favour. He relied on Chirchir Arap Kuto v Nancy Cherotich Koech & another [2022] eKLR to buttress his submissions.
[12] This being a first appeal, it is the duty of this Court to re-evaluate the evidence that was placed before the lower court and make its own conclusions thereon. The words of Sir Clement de Lestang, VP, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, are apt, namely, that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 due allowance in this respect..."
[13] However, before a merit evaluation of the evidence presented before the lower court, it is imperative for the Court to determine the issue of jurisdiction as raised by the respondent. This is because jurisdiction is a threshold issue that must be disposed of in limine , as otherwise, the Court would be acting in vain. In the Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited [1989] KLR 1 the Court of Appeal held:
“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
[14] Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [ 2019] eKLR thus:
“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae...”
[15] Hence, in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[16] Needless to add that the issue of jurisdiction can be raised at any time, even on appeal. In Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] eKLR the Court of Appeal held:
“…It would therefore have been prudent for the appellant to raise the question of jurisdiction before the superior court as that way this court would have had the benefit of reasoning of the superior court on the issue. However, we must now determine whether the issue of jurisdiction can be properly raised by the appellant at this stage. In Floriculture International Ltd v Central Kenya Ltd & 3 Others (1995) eKLR, the court held that the issue of jurisdiction can be argued at any time. The court remarked as follows:
“It has been held in the case of Kenidia Assurance Co. Ltd v Otiende (1989) 2 KAR 162 that the normal rule that a party could not raise for the first time on appeal a point he had failed to raise in the High Court, did not, and could not apply when the issue sought to be raised de novo on appeal went to jurisdiction.”
The reasoning is that even where the question of jurisdiction is not raised that does not necessary confer jurisdiction on the court if it has none. Accordingly, we find that the appellants are not precluded from raising the jurisdictional issue for the first time on appeal having not raised it in the superior court…”
[17] The point was restated by the Court of Appeal in Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] eKLR thus:
“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:
“….at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself;
- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”
(See All Progressive Grand Alliance (APGA) v. Senator Christiana N.D. Anyanwu & 2 others , LER [2014] SC. 20/2013 Supreme Court of Nigeria). We agree with these authorities and, hold that the question of jurisdiction was properly raised before this Court because, as they say in Latin, ex nihilo nihil fit (out of nothing comes nothing).”
[18] The question posed by the respondent herein is whether the learned magistrate had the jurisdiction to entertain the lower court suit granted the clear provisions of Section 4(1) of the Limitation of Actions Act. The provision states:
(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued—
(a) actions founded on contract;
(b) actions to enforce a recognizance;
(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law .
[19] It is manifest therefore that, to the extent that the lower court suit was filed in June 2014 about 8 years from the date of the agreement, the suit was time-barred.
[20] For those reasons, the appeal is incompetent and is accordingly struck out. As to whether the appellant should be condemned to pay costs, I have taken into consideration the applicable principles as set out by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR. The Court held:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[21] In the circumstances hereof, the justice of the case dictates that each party bears own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026