(Being an Appeal from the Judgement of Hon Edwin Mulochi (SRM) delivered on 13th August 2024 in Kabarnet ELC Case No. E019 of 2021)
Background
1. By a plaint dated 3rd August 2021, the plaintiff instituted a suit in the lower court to wit Kabarnet SRM ELC Case No. E019 of 2021 seeking judgment against the defendant (now respondent) for an order of permanent injunction restraining the defendant either by himself, his agents and servants or anyone acting under his authority from hiving, fencing, developing, trespassing, attempting to lay any claim of right over the parcel of land known as plot No.17 Kasisit trading centre measuring approximately 50 by 100 feet (suit plot); that the defendant be ordered to render vacant and quiet possession and occupation to the plaintiff of the whole suit plot; costs and damages plus interest from the date of filing the suit.
2. As can be discerned from the averments/contentions in the plaint, the appellant’s suit was premised on the grounds that he is the beneficial allotee of the suit plot; that the suit plot belonged to his father Samuel Chebon Chebii, deceased; that his father had been allocated the suit plot by the County Council of Baringo and had been paying rent to the County Council in respect thereof since 1968 and that the defendant who is a total stranger to the estate of his father, on 29th December 2020, trespassed into the suit plot and started digging a pit latrine therein.
3. The plaintiff lamented that efforts to get the defendant to stop the activities complained of were futile.
4. The defendant filed a statement of defence dated 3rd February 2022 in which he denied being a trespasser in the suit plot and explained that he purchased a portion of the suit plot measuring 25 by 100 feet from the plaintiff’s deceased father on or about 15th May 1980.
5. It was the defendant’s pleaded case, that the portion of the suit plot he bought was curved out and transferred to him; that he took possession of the portion of the suit plot sold to him and extensively developed it and that the developments he had effected on his portion of the suit plot were destroyed by fire in 2003.
6. When the suit came up for hearing, the plaintiff who testified as PW1, relied on his witness statement dated 8th September 2021 whose contents are in pari materia to his pleaded case. He also relied on the affidavits sworn in support of his interlocutory application dated 3rd August 2021.
7. The plaintiff maintained that the suit plot was not sold. Upon being shown the sale agreement allegedly executed in respect of the suit plot, he stated that the names in the sale agreement are strange to him.
8. P.W.2 Sarali Chebii, echoed P.W.1’s testimony to the effect that the suit plot was not sold. Upon being informed that the suit plot is co-owned between her deceased father and the defendant, she stated that she would be surprised if there are documents attesting to that fact.
9. P.W.3 Talaa Chebon, informed the court that she does not know the defendant and about the agreement allegedly entered into in 1980. Because she could not answer questions comprehensively, she was stood down.
10. The defendant, Ezekiel Chebet, who testified as D.W.1, relied on his statement recorded on 19th May 2022 (the contents of the statement are in pari materia to the averments contained in the statement of defence). He produced the documents contained in his list of documents as Dexbt 1-7 and maintained that he bought a portion of the suit plot from the plaintiff’s deceased father.
11. Concerning the statement of P.W.3 denying knowledge of the agreement allegedly executed between him and her family, the defendant informed the court that P.W.3 thumb-printed the sale agreement.
12. D.W.1 maintained that the plaintiff’s deceased father sold a portion of the suit property to him and later transferred the portion to him.
13. In cross examination, the defendant informed the court that the letter he produced as Dexbt 1 was written by the deceased and was brought to him by the plaintiff’s brother, Reuben Chebon Chelimo (deceased). The letter indicates that the plaintiff’s deceased father had agreed to sale half of the suit plot. He acknowledged that the letter does not bear his name. That notwithstanding, he informed the court that it was on the basis of that letter they wrote the agreement dated 18th May 1980 (Dexbt 2).
14. Based on those documents, the defendant informed the court that the plaintiff’s deceased father gave authority to his wife (P.W.3) and two of her sons to sell a portion of the suit plot to him; that at that time, the plaintiff was a child of 3 years or thereabout; that at the time he entered into the agreement, he knew the seller as Chebon and that the seller’s wife (P.W.3) introduced herself as Tapkigen.
15. D.W.1 further informed the court that Dexbt 1 was signed by the plaintiff’s father and that he signed as Samuel Chebon; that Dexbt 3 is praying to change/transfer ownership of the plot and that he went to the County Council and gave them the letter.
16. The defendant further led evidence to the effect that the suit plot was subdivided into two, yielding plot No. 40 belonging to him and in respect of which he had been paying rent to the County Council.
17. In re examination, the defendant stated that Dexbt 4 is a letter from the Clerk of the County Council of Baringo written to the plaintiff’s father granting his prayer to split the suit plot into 2 portions.
18. D.W.1 maintained that through Dexbt 1, the plaintiff’s father authorized his wife (P.W.3) and two sons to sell the plot to him and ensured that he got his share.
19. Concerning P.W.3’s ID, DW1 stated that PW3’s 1st generation ID acquired in 1979 and second generation ID acquired in 1996 bear the names Talaa Chebon. He pointed out that in court, P.W.3 said that she is also called Tapkigen.
20. As to why P.W 3’s name appearing in the ID was not captured, DW1 stated that the ID was not produced when they wrote the agreement. He explained that the agreement was written based on trust.
21. D.W.2 Charles Chebon Kiprong, informed the court that he is the plaintiff’s elder brother. He relied on his statement dated 26th September 2022. He informed the court that he is aware of the agreement executed between the defendant and his family (Dexbt 2). He witnessed it by signing. His mother also signed it. She was at the time called Tapkigen.
22. He corroborated the defendant’s pleaded case that he took possession of the portion of the suit plot sold to him and effected developments thereon which were later on destroyed by fire.
23. Maintaining that they sold a portion of the suit plot, DW2 explained that they did so to repay a loan they owed a creditor who was threatening to sell their land.
24. In cross examination, DW2 maintained that they sold the land and that they did so with the permission of their father.
25. D.W.3 Wesley Kiptarus Chemwetich, informed the court that he witnessed the agreement executed between the defendant and the plaintiff’s family (Dexbt 2). He stated that the plaintiff’s father authorized the sale. Like D.W.2, he confirmed that the defendant had taken possession of the portion of the suit plot he bought and developed it before the developments were destroyed by fire in 2003.
26. It is on the basis of the foregoing pleadings, evidence and the submissions filed by the parties, that the learned trial magistrate determined that the plaintiff had not proved his case on a balance of probabilities and dismissed it with costs to the defendant.
The Appeal
27. Dissatisfied with the decision of the learned trial magistrate, the plaintiff appealed to this court on the grounds that the learned trial magistrate erred by:-
i) Holding that the respondent had proved his case on a balance of probabilities on a contested issue of purchase of land rather than considering the express provisions of section 3(3) of the Law of Contract Act on contracts for sale of land;
ii) Holding that the defendant properly purchased the suit plot whereas the disputed vendor’s witness were minors all below 18 years (sons to the plaintiff’s father) hence had no legal capacity;
iii) Not considering the evidence tendered in court by the appellant as well as his written submissions;
iv) Failing to take into consideration vital evidence tendered by the appellant’s witnesses pointing to the fact that the parcel in dispute was transacted by a stranger whose identities were not properly captured and whose ID numbers were not recorded;
v) Failing to find that the impugned letter that gave rise to the impugned agreement was not a valid document (it had not been signed) to sanction sale of another person’s land who was still alive and available-(failing to find that there was no express consent);
vi) Failing to find that the impugned agreement was a promise to pay in future hence not legally binding per se;
vii) Failing to hold that the impugned agreement was not properly executed;
viii) Failing to hold that the respondent attempted to invade the suit plot after the lapse of the statutory timelines. More than 12 years had since extinguished, a fact the defendant admitted he has never been in occupation and or possession and the last time was in 2003 as per his evidence;
ix) Failing to hold that there exists two distinct parcels being No.17, suit plot, and parcel No.40 property of the respondent each individually owned and paid for rent and rates individually by the parties as depicted by the evidence on record;
x) Holding that parcels 17 and 40 are co-joined despite the fact that all the parties admitted that parcel No.17 has never been split into 2 since. It currently measures 50 by 100 ft.
xi) Taking into consideration extraneous evidence and issues in arriving at the impugned decision;
xii) Extensively relying on DW2’s evidence who was 17 years old at the time of the execution of the impugned sale agreement, therefore a minor.
xiii) Failing to acknowledge the fact that ordinarily when a parcel of land is subdivided, new numbers are generated upon the subdivision therefore, it cannot maintain the original number as claimed by the respondent;
xiv) Giving a judgment which was extremely biased against the appellant which is not based on law, fact and the evidence tendered before the trial court.
28. The appellant prays that the judgment of the lower court be set aside and the appeal be allowed with costs.
29. The appeal was disposed off by way of written submissions.
SUBMISSIONS
Appellant’s submissions
30. In the appellant’s submissions filed on 20th May 2025, the appellant has identified two issues for the court’s determination. These are;
i) Whether the trial court misdirected itself and
ii) Whether the appeal has merit.
31. As to whether the trial court misdirected itself, the appellant submits that the trial court improperly misdirected itself when it held that the suit plot, plot No.17, was divided into two portions.
32. Claiming that the respondent’s own witnesses, particularly DW3, confirmed that the suit plot, plot No.17, measures 50 by 100 feet, the appellant contends that the trial court turned a blind eye to that evidence and the evidence of the appellant. The appellant also contends that one cannot be issued with a letter of allotment for a parcel of land measuring 25 by 100 feet.
33. It is the appellant’s case that he confirmed that the suit plot was not split into two portions as alleged and that the respondent has never been in possession or occupation of the suit plot. It is the appellant’s further case that the respondent’s claim is for plot No.70 which is different and distinct from the suit plot.
34. The appellant further faults the trial court for holding that Samuel Chebon Chebii (the owner of the suit plot) gave consent for the sale of the suit plot. Based on the testimony of DW2, in which he claims that he (DW2) expressed doubt about signing the alleged consent by the owner to sanction sale of the suit plot, the appellant submits that the trial court improperly directed itself when it determined that the respondent had proved his pleaded case.
35. Concerning the rspondent’s claim and evidence that he had erected structures on the suit plot which were destroyed by fire, the appellant submits that the respondent never proved that fact.
36. On whether the appeal has merit, the appellant makes reference to section 3(3) of the Law of Contract Act and submits that the requirements of section 3(3) of the Law of Contract Act were not met and could not be met because the purported seller was alive but away in Nakuru County. The appellant acknowledges that his mother and his brother’s name appear in the sale agreement as witnesses but on account of the fact that his brother was a minor and that his mother’s name is not properly captured in the agreement, contends that the agreement is not a valid sale agreement.
37. It is the appellant’s further case that the appellant did not have capacity to execute the contract on behalf of the appellant’s father. In that regard, the appellant contends that there is no express consent or power of attorney donating powers properly drawn and executed by the donee produced in court.
38. The appellant further contends that the agreement as drawn is a promise to pay in future hence not enforceable in law; that the agreement was not executed by all the parties properly entitled to execute it and that the owner did not participate in its execution.
39. It is the appellant’s case that even assuming the agreement is proper, the same was not properly attested by vendor’s witnesses.
Respondent’s submissions
40. The respondent filed submissions in which he identifies the issues of the court’s determination as follows:-
i) Whether the sale of half of the suit plot to the respondent was valid?
ii) Whether the deceased’s widow was the agent of the deceased?
iii) Whether the respondent is a trespasser; and
iv) Whether the trial magistrate was biased against the appellant.
41. Regarding those issues, the respondent has given an account of the evidence adduced and inter alia submits that he proved that P.W.2 was an agent of the deceased for purpose of the suit plot and that the deceased through his conduct of transferring the portion of the suit plot sold to him ratified the agreement.
42. Contrary to the appellant’s contention that the sale agreement does not satisfy the conditions of section 3(3) of the Law of Contract Act, the respondent submits that it does, as the seller’s agent, the purchaser and witnesses signed it.
Analysis and determination
43. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.
44. As can be discerned from the pleadings and the evidence adduced before the lower court, the dispute presented before the lower court turns on whether or not the defendant bought a portion of the suit plot from the plaintiff’s deceased father.
45. Concerning that issue, whilst the plaintiff and his sister (P.W.2) contended that the suit plot was not sold to the defendant, the defendant led evidence both oral and documentary that proved that he entered into an agreement for sale of a portion of the suit plot with the plaintiff’s family members. The evidence adduced by the defendant, comprised in documents and conduct of the parties to the agreement, shows that the plaintiff’s father sanctioned the sale of the suit plot and later caused a portion of it to be transferred to the defendant. The evidence adduced by the defendant also shows that the defendant took possession of the portion of the suit plot and developed it before the development he effected was destroyed by fire in 2003.
46. The claim by the plaintiff that the defendant trespassed into the suit plot in 2020 or thereabout is not supported by the totality of the evidence adduced before the lower court regarding the defendant’s possession and occupation of the suit plot, which was confirmed by none other than the plaintiff’s own brother, D.W.2.
47. In the absence of any reason or demonstrated cause for disbelieving the testimony of D.W.2 and D.W.3 to the effect that the defendant had taken possession of the portion of the suit plot which he bought and effected developments thereon before the developments were destroyed by fire, this court has no basis for believing the plaintiff’s claim that the defendant trespassed into the suit plot in 2020.
48. The evidence adduced in the lower court shows that the plaintiff’s father was alive when the defendant was in use and possession of the portion sold to him. The plaintiff neither pleaded that there was a dispute over ownership of the portion of the suit plot occupied by the defendant then nor provided any evidence capable of proving that fact.
49. Regarding the contention or submission that the learned magistrate erred by failing to find that the defendant’s claim over the suit plot was time barred, on account of the admitted fact that more that 12 years had lapsed after the defendant’s use and possession of the suit plot, it is the finding of this court that there was no claim for adverse possession urged by the plaintiff on which such a determination could hinge. In any event, the circumstances of this case may not sustain a claim for advserse possession as the suit plot is not registered under any known system of land registration as required under the Limitation of Actions Act.
50. As to whether lack of compliance with the formalities required under Section (3)(3) of the Law of Contract Act vitiated the contract of sale executed between the defendant and the plaintiff’s family, it is the considered view of this court that it does not. That is so because the proviso to section 3 of the Law of Contract Act found in subsection 7 exempts contracts entered into prior to 2003 from those stringent provisions. In that regard see the case of Peter Mbiri Michuki v Samuel Mugo Michuki (2014)e KLR where the Court of Appeal stated:-
“Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is in writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excludes the application of section 3(3) of the said Act to contracts made before the commencement of the subsection. Section 3(3) of the said Act, came into effect on 1st June 2003. The trial court found that the sale agreement was an oral agreement made in 1964 between the appellant and the plaintiff. Prior to amendment of section 3(3) of the Law of Contract Act in 2003, the section read as follows:
(3) No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it; provided that such a suit shall not be prevented by reason only of absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-
(1) Has in part performance of the contract taken possession of the property or any part thereof; or
(11) Being already in possession, continues in possession in partperformance of the contract and has done some other act in furtherance of the contract.’’
51. The totality of the evidence adduced by the defendant showed that the plaintiff’s father authorized the plaintiff’s mother (P.W.3) and his brother to execute the contract on his behalf. Subsequently, he caused the portion he sold to the defendant to be transferred to him.
52. The claim by the appellant that D.W.2, who witnessed the agreement was not a competent witness for purpose of witnessing the contract because he was not of age of majority (was 17 years of age) is not supported by law. The incapacity of D.W.2 related to entering into contract by himself but not giving evidence as to what he knows or did concerning the transaction. In that regard, see section 125 of the Law of Evidence Act Cap 80 Laws of Kenya which provides as follows:-
“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extreme old age, disease (whether of body or mind or any similar cause”.
53. The upshot of the foregoing is that the appeal is found to be lacking in merits and is dismissed with costs to the respondent.
54. Orders accordingly.
Dated, signed and delivered virtually this 23rd June, 2025.
In the presence of:
N/A for the Appellant
Mr Chebii for the Respondent
Court Assistant: Lilian