1.This is an appeal against the Judgment of the Senior Principal Magistrate at Mutomo Z.J Nyakundi, in Civil Case Number 103 of 2016 dated 21st January 2020. The Appellants filed a Memorandum of Appeal dated 18th February 2020 setting forth the following grounds of appeal:
1)The learned Court erred and misdirected himself when he relied on hearsay of a sale agreement which made him arrive at a wrong decision.
2)The trial court erred and misdirected himself when he entered judgment against the appellants when there was no evidence produced in court for the alleged sale which made the court enter a wrongful judgment.
3)The trial magistrate erred and misdirected himself when he failed to find that both the seller and the buyer had no capacity to enter into such a transaction by virtue that the seller had not obtained letters of administration.
4)The trial magistrate erred and misdirected himself when he relied on evidence tendered by the Respondent and his witnesses, which evidence led him to arrive at a wrong decision.
5)The Honourable Magistrate erred in law and facts when he allowed the Respondent’s claim when there were sufficient reasons to dismiss it.
2.The Appellants prayed that the trial court judgment be set aside and/or be quashed and costs of the appeal be awarded to them.
3.The suit before the Trial Court was instituted through the plaint amended on 25th January 2018. The Plaintiff claimed ownership of part of land parcel No. 30 situated in Uae Location, Mutomo sub-County, Kitui County through purchase by a written agreement dated August 2010. He claims to have paid the entire purchase price but the 3rd defendant refused and neglected to transfer the property to him.
4.The Plaintiff claimed that in 2014 and 2015, the defendants entered into the land claiming ownership and destroyed and damaged trees and vegetation. He averred that the land was valued at Ksh.2,448,000/= while the damage caused and the crops destroyed were assessed at Ksh.83,100/=.
5.The plaintiff prayed for Ksh.83,100, a declaration that he is the owner of the suit land, an order of specific performance directed to the 3rd and 4th defendants to transfer the title to the whole of the suit land to him, a permanent injunction restraining the defendants from interfering, selling or alienating the suit land, general and special damages for trespass. In the alternative, the 3rd and 4th defendants do compensate the him the current value of the suit property together with investments and developments carried out on the suit property and interest at court rates.
The 1st and 2nd Defendant’s Statement of Defence
6.The 1st and 2nd defendants denied the contents of the plaint in particular, that the Plaintiff was the owner of the suit land parcel No. 30 Uae Adjudication Section. They denied entering the land and causing damage.
The 3rd and 4th Defendants’ Defence and Counter-claim
7.The 3rd and 4th defendants denied the plaintiff’s claim and stated that the suit land was registered in the name of Tabitha Wayua Mutaki (Deceased), and any purported transaction over the same was a nullity. They raised a defence of fraud on the part of the plaintiff by causing the 3rd defendant to sign an agreement thought to be a lease after drugging him with potent alcohol.
8.They claimed that the Plaintiff forcibly encroached onto a portion of the suit land and illegally started cultivating it claiming to have purchased it.
9.They averred that the suit land has since been administered through succession and is now the property of the 4th defendant Josephine Tanga Matuku.
10.Terming the alleged agreement between the Plaintiff and the 3rd Defendant as legally untenable, the 3rd and 4th defendants filed a counterclaim against the Plaintiff claiming that the agreement was a lease and that in spite of the 4th defendant giving the Plaintiff notice to vacate the land, the plaintiff refused to do so. They therefore prayed for the Plaintiff\'s suit to be dismissed and an order of eviction to be issued against the Plaintiff to be supervised through the OCS Mutomo Police Station.
Hearing of the suit before the trial court.
11.PW 1, Joel Mutiso Kithome, the Plaintiff testified and relied on his witness statement where he stated that on 24th August 2010, the 3rd Defendant, Mulwa Mutaki, his uncle sold him a parcel of land for which he paid Ksh.10,000. He testified that the defendants had invaded his land, destroying property by cutting down trees and grazing and thus denying him peaceful enjoyment of the land. The Plaintiff stated that the 3rd defendant’s sister, Josephine Mutunga Mutuku started claiming the land. He stated that he would return the land to the Defendants if he would be paid the value of the land which amounted to Ksh.2.4 Million.
12.On cross-examination, the Plaintiff stated that he filed an objection to the grant in the succession case. The Plaintiff denied buying the 3rd defendant alcohol and also denied that the land was for lease.
13.PW 2 Masyuki Kyalo testified stating that he was present when the Plaintiff bought the suit land from the 3rd Defendant for Ksh.10,000/=. On cross-examination, he stated that the land was sold before adjudication and the land belonged to the 3rd defendant’s mother.
14.PW 3 Joel Mutua Mwangangi adopted his witness statement and testified that he was a neighbour and witnessed when the Plaintiff was shown the boundaries of the portion he purchased from the 3rd defendant. On cross-examination, he stated that the land belonged to the 3rd defendant’s mother.
15.PW 4 Bernard Kiema relied on his witness statement and recalled that the Plaintiff had informed him that someone grazed their animals on his land, which destroyed his trees and crops and later called him while at Mutomo Police Station. Upon cross-examination, PW 4 denied being present when the land was sold to the Plaintiff.
16. The defence case started with the evidence of DW 1, Benjamin Mutangili who stated that the land in dispute belongs to Tabitha Wayua Mutaki who is deceased and denied having any knowledge of the Plaintiff. He denied ever trespassing on the Plaintiff’s land. He stated that the Plaintiff is a trespasser on a portion of the suit land and he has no developments thereon. He denied allowing his livestock to graze on the suit land.
17.DW 2 Rebecca Kavemba, the 2nd defendant, adopted her witness statements stating that the suit parcel belonged to Josephine Tanga Matuku, having succeeded her late mother Tabitha Wayua Matuku. She testified that the Plaintiff is a trespasser on the 2 acre-portion that he occupies and denied the allegations of trespass against her.
18.DW 3 Mulwa Mutaki, the 3rd defendant adopted his witness statement and stated that the Plaintiff asked him to lease a portion of his mother\'s land Mutomo/Uae/30 to cultivate for 2 years, a request which he declined. Later the Plaintiff gave him a traditional brew called \"karubu\" and two bottles of Kane spirits which he drank and blacked out. When he was still drunk in the morning, the Plaintiff took him to his mother\'s farm accompanied by other men and told him to lease to him 2 acres of the suit land for 2 years at Ksh.10,00 0. After 2 years, the Plaintiff refused to vacate the farm and claimed to have bought the portion. He only came to learn that the document they signed was written sale and not lease. The 3rd Defendant stated that he could not have sold his late mother’s property without involving other members of the family and without legal authority.
19.He noted that the property has since been transmitted to his sister Josephine Tanga Matuku who is the owner to hold in trust for all the siblings. He acknowledged that the 4th defendant registered herself as the owner of the land to prevent the 3rd defendant from transferring the land to the Plaintiff and that he could not sell the suit land without consulting his siblings.
20.DW 4 Josephine Tanga Matuku, the 4th Defendant adopted her witness statement and produced the defendant\'s exhibits; the Title Deed to the suit land registered in her name, a copy of her mother\'s death certificate and grant of letters of administration. She confirmed that she is the registered owner of the suit land and that neither she nor her late mother sold a portion of the land. She came to learn that the Plaintiff tricked the 3rd defendant who is her brother into leasing a portion of the land to him for 2 years for a sum of Ksh.10,000 after finding him working on the land.
21.Since the Plaintiff refused to vacate the land, they reported the matter to the police and he was arrested and charged with trespass, which were withdrawn because the title to the land was then in the name of their late mother.
22.The trial court delivered judgment on 24th Judgment 2020 where it was found that on the issue of sale and ownership, the 3rd defendant having been the only surviving son and his sisters having been married off, he had the right to sell a portion of the land to the Plaintiff as he awaited to apply for letters of administration, a fact which he disclosed to the plaintiff who acted on this undertaking.
23.Concerning the allegation of crop damage, the Court found that the Plaintiff did not avail any eyewitnesses or any other evidence in support of the crop damage allegation and dismissed the case against the 1st and 2nd defendants.
24.Judgment was entered in favour of the Plaintiff against the 3rd and 4th defendants and a permanent injunction was issued against them restraining them from trespassing or encroaching onto a portion measuring 2 acres of the suit land which is under the possession and occupation of the plaintiff. A declaration that the plaintiff owns the said portion of the suit land was also issued and an order of specific performance was directed to the 3rd and 4th defendants to execute the relevant transfer documents to the plaintiff\'s name, with each party to bear their costs.
25. Being dissatisfied with the decision of the trial court, the 3rd and 4th defendants filed this appeal.
The Appellants’ submissions.
26.Counsel for the Appellant submitted that the Respondent failed to adduce documentary evidence in support of his claim to ownership of the suit land but relied solely on the evidence of his 3 witnesses. The Appellants refuted the Respondent\'s claim and their case was supported by a bundle of documents.
27.It was submitted that as of 24th August 2010, the suit property belonged to Tabitha Wayua Mutaki, who died on 16th April 2007 and the alleged purchase was before succession proceedings were filed. Relying on sections 45 and 82 of the Law of Succession Act, as well as the cases of: Njoki Gacheru Ndiuni-vs Dadson Githenji Wahome & 3 others(2016) eKLR and Morris Mwiti Mburungu-vs Denis Kimathi M’Mburungu(2016) eKLR among others, the Appellants submit that the suit property was not capable of being sold without the express authority of the Court.
28.Counsel for the Appellants relied on Sections 107 and 108 of the Evidence Act on the burden of proof and the case of Mercy Nkirote vs Lawrence Ngaku Bundi & 2 others(2022)eKLR stating that Section 3 of the Law of Contract Act requires a contract of sale of land to be in writing, signed by all parties and the signature of each party must be attested by a witness who is present when the contract is signed by such party. Counsel submitted that no such document was produced, not even the sale agreement and cited the cases of Leo Investment Ltd-vs Estuarine Estate Ltd(2017)eKLR.
Ronoh & 26 others -vs-Mbugua & 7 others(Environment and Land Case E190 of 2022)(2024)KEELC 250 (KLR)(25th January 2024)(Ruling).
29.Quoting Section 26(1) of the Land Registration Act No.3 of 2012, the Appellants submitted that for the trial court to find that the 2nd Appellant\'s title to the suit property was defective, the criteria and threshold under Section 26 of the Land Registration Act ought to have been met. They relied on the cases of Munyu Maina -vs- Hiram Gatiha Maina(2013)eKLR, Kuria Kiarie & 2 others -vs-Sammy Magera(2018)eKLR among others.
30.The Appellants submitted that the Respondent did not show that the title acquired by the 2nd Appellant over the suit property was acquired fraudulently or unprocedurally and faulted the trial court for finding that the suit property had been sold.
The Respondent’s submissions
31.Counsel for the Respondents submitted that it is not in dispute that the 1st Appellant and the Respondent entered into an agreement in respect of the suit parcel of land and that the Respondent performed his part of the bargain but the 1st Appellant did not perform his part.
32.Counsel pointed out that during cross-examination, DW3 admitted that the reason the land was registered in the name of the 2nd Appellant was to defeat the agreement and frustrate the transfer of land to the Respondent.
33.On the question of the 1st Appellant\'s capacity to enter into the said sale agreement, it is submitted that the land had not yet been vested in Tabitha Wayua Mutaki because it was still under land adjudication which had not been completed. Section 45 of the Law of Succession Act on intermeddling with the property of a deceased person could not apply since the rights of the deceased person over the property were not vested fully before the time of death. Their submission is that before the process of land adjudication is completed and a title deed is issued, a person cannot claim to be a registered owner of land.
34.As a result, Counsel submits that the suit land could not form part of the deceased\'s estate and the property has to be dealt with following customary tenure where under Kamba customary law, a son has the capacity to transfer familial land.
35.Counsel relied on the case of Adan Chuda Sode vs Madina Oshe Jira & Another [2021] eKLR where the Court held that unregistered land cannot be construed to mean free property of a deceased person. He also relied on the cases of Steadman –vs- Steadman [1976] AC 536,540 and Macharia Mwangi Maina & 87 others –vs- David son Mwangi Kagiri[2014] eKLR and submitted that the Appellants would be enriching themselves unjustly by retaining the land and the money paid to them by the Respondent against the doctrine of unjust enrichment.
36.Counsel for the Respondent concluded by submitting that if this Court finds that the 1st Appellant had no capacity to enter into such an agreement, the Respondent should be entitled to a refund of the current value of the suit property together with developments and investments carried out on the property amounting to Ksh. 2,400,000/= and costs follow the event.
Analysis and Determination
37.As a first appellate court, this court must approach the whole of the evidence on record from a fresh perspective and with an open mind and to evaluate and re-examine the evidence adduced, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified.
38.The role of an appellate court was stated in the case of Gitobu Imanyara & 2 others v Attorney General [2016] e KLR, where the Court of Appeal stated that;
“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 due allowances in this respect.”
39.Having considered the grounds of appeal, record of appeal and the rival submissions in this appeal, the court is of the view that the grounds of appeal may be summarized and dealt with under the following issues arising for determination:
1)Ground 3: Whether the 1st Appellant and the Respondent had the capacity to enter into an agreement for the sale or lease of land parcel number Mutomo/Uae/30.
2)Grounds 1, 2, 4, and 5: Whether there was a valid agreement for the sale of a portion of 2 acres out of land parcel number Mutomo/Uae/30 to the Respondent.
Whether the 1st Appellant and the Respondent had the capacity to enter into an agreement for the sale or lease of land parcel number Mutomo/Uae/30.
40.The Respondent claimed before the trial court that he purchased a portion of the suit land P/No. 30 Uae Adjudication Section from the 1st Appellant in August 2010 and executed a contract of sale of land and there were witnesses to the transaction. He further claimed that he paid the entire purchase price of Kshs 10,000 and took possession of the land, fenced and planted trees and started farming.
41.The Appellants denied the Respondent’s claim stating that at the time the Respondent claimed to have purchased a portion of the suit land from the 1st Appellant, the land was registered in the name of Tabitha Wayua Mutaki (Deceased) the mother of the Appellants herein, who was already deceased at the time, and as such, any purported transaction over the same was a nullity. Further, the Appellants averred that the suit property has since been administered through succession and is now the property of the 4th defendant Josephine Tanga Matuku.
42.During the hearing, the Appellants produced in evidence a title deed to the suit land parcel now known as Mutomo/Uae/30 dated 31st July 2017 registered in her name as the absolute proprietor with no recorded encumbrances. The Appellants also produced a Certificate of Death for Tabitha Wayua Mutaki who died on 16th April 2007 and a grant of letters of administration to her estate issued on 14th April 2016 to the 2nd Appellant. They also produced in evidence a copy of the title deed to the suit land issued on 28th November 2014 in the name of Tabitha Wayua Mutaki.
43.Counsel for Appellants submitted that as of 24th August 2010 when the Respondent claims to have purchased the suit land, the land belonged to Tabitha Wayua Mutaki, who died on 16th April 2007. The Appellants state that the Respondent was aware of this fact but purported to have bought the land on the ground that the 1st Appellant was the only son of the deceased. Counsel submitted that any such purported transaction over the suit land was a nullity. The Appellants submitted that the suit land was not capable of being sold without the express authority of the Court, when at the time no letters of administration had been taken out and thus the 1st Appellant had no capacity to sell the land.
44.Counsel for the Appellants relied on sections 45 and 82 of the Law of Succession Act, as well as the cases of Njoki Gacheru Ndiuni-vs Dadson Githenji Wahome & 3 others(2016) eKLR, Morris Mwiti Mburungu-vs Denis Kimathi M’Mburungu(2016) eKLR, In the Matter of the Estate of Veronica Wakagoto(Deceased)(2019)eKLR among others.
45. Section 45(1) of the Law of Succession Act CAP 160 provides that:
“Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.”
46.Section 82 (b) (ii) of the Law of Succession Act provides that:-
‘No immovable property shall be sold before confirmation of Grant’
47.Counsel for the Appellants relied on the authority among others of Njoki Gicheru Ndiuni v Dadson Githenji Wahome & 3 others [2016] eKLR where it was held that:
“The section is clear that the status quo at the time of the deceased\'s death ought to be maintained. The law requires that the deceased\'s persons\' estate ought to be preserved as at the time of death. In the matter of the estate of M’mugambi M’guoko alia Mugambi Gwoko alia Mugambi Guoko- Deceased. Makau J held that the Petitioner\'s acts in the said case of attempting to sell or selling the deceased\'s property to anyone were illegal, null and void for contravening section 45(1) cited above…………. interpreting the section 45 (1) cited above Musyoka J in the Estate of Veronica Njoki Wakagoto-Deceased had this to say:-
‘The effect of this is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.
In this matter, the respondent sold property belonging to a dead person without authority as letters of administration had not yet been made. The fact of having petitioned for letters did not clothe him any authority. He and Felix Kinuthia intermeddled with the estate, and they no doubt committed an offence under section 45 (2) (a) of the Act. It is unfortunate that the prosecutorial authorities do not focus on offences of this kind as prosecutions are hardly mounted over them. This explains why the property of dead persons is routinely intermeddled with.\"
48. Counsel also relied on the holding in the case of Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR where it was held that:
“In the case of Francis Musyoki Kilonzo and another -V- Vincent Mutua Mutiso (2013)eKLR Mutende J held that where a beneficiary purports to sell a property of a deceased person before the grant is confirmed and in contravention of section 45 of the Act, it amounts to intermeddling and the court cannot protect the purchaser.
From the foregoing, it is clear, and I so hold, that where any person interferes with the free property of the deceased or deals with an estate of a deceased person contrary to the provisions of sections 45 and 82 of the Act, that is intermeddling, is unlawful and cannot be protected by the court. The transaction is subject to be nullified and set aside at the instance of the innocent beneficiaries who may have been affected by the act but were not involved in the same.\"
49.Counsel for the Respondent, on the other hand, argued on the question of the 1st Appellant’s capacity to enter into the sale agreement under consideration and submitted that at the time of sale, the suit land had not yet vested in Tabitha Wayua Mutaki because it was still under land adjudication which had not been completed. 25. Section 45 of the Law of Succession Act. Counsel argued that Section 45 of the Law of Succession Act which prohibits intermeddling with property of a deceased person does not apply in this case since the rights of the deceased person over the property had not vested fully before the time of death. He stated that in this case when Tabitha Wayua Mutaki died, she had no title over the property and therefore rights had not conclusively ascertained in her favour. He argued that before the process of land adjudication is completed and a title deed is issued, a person cannot claim to be a registered owner of land. In this case, the title deed was issued in 2014, seven years after the death of Tabitha Wayua Mutaki and the same was issued in error as at that time a title deed could not vest in her because she was deceased.
50.The Court has considered the rival arguments concerning whether the 1st Appellant and the Respondent had the legal capacity to sell and purchase the suit land respectively. The Respondent\'s reply to the Appellant\'s (3rd and 4th Defendants) defence and counterclaim stated in paragraph 2; \" In reply to paragraphs 4 and 5 of the defence, the Plaintiff avers that he purchased the suit property (being a portion of the parcel known as MUTOMO/UAE/30) from the 3rd defendant, Mulwa Mutaki, when the owner was deceased and the understanding was that Mulwa could transfer the purchased portion to the Plaintiff. An agreement was signed.” The Respondent further stated in paragraph 3, “ Further, the Plaintiff avers that the 3rd Defendant has been sued as the seller of the suit property. On the other hand, the 4th Defendant is sued as the Administrator of the estate of the deceased, Tabitha Wayua Mutaki, who has the legal mandate to deal with the estate, including the transfer of the suit property to the Plaintiff\"
51.Further, during the hearing of the suit, the Respondent confirmed that he dealt with the 1st Appellant as he understood that the 1st Appellant inherited the land from his deceased mother based on the fact that he was his mother\'s only son and his sisters were married.
52.In the Court\'s view, all the above averments and pleadings confirm that the Respondent affirmed and admitted the fact that at the time he was allegedly purchasing the suit land he was aware that it belonged to the deceased Tabitha Wayua Mutaki. Even though the process of land adjudication had not been completed and title deed to the land had not been issued, ownership of the land was not contested. Further, the Respondent did not at any time claim that the suit land was family land or that the 1st Appellant had any legal right to the land apart from the Respondent’s alleged assertion that the 1st Appellant was the sole beneficiary of the estate of Tabitha Wayua by virtue of being her only son.
53.Further, the title deed to the suit land was issued in the name of the deceased on 28th November 2014 meaning that the process of land adjudication had been completed and the deceased was ascertained, confirmed and registered as the legal owner of the land. Neither the 1st Appellant nor the Respondent herein are said to have challenged the deceased’s ownership of the land or claimed ownership of the land for themselves during land adjudication and neither was it shown that they objected to the title deed being issued in the name of the deceased.
54.It was also stated in evidence that the succession court in High Court Succession Cause no. 316 of 2015 (in the matter of the estate of Tabitha Wayua Mutaki) issued a certificate of confirmation of the grant issued to the 2nd Appellant on 27th February 2017 and awarded the entire land parcel MUTOMO/UAE/30 to the 2nd Appellant. In the court\'s view, the succession court was satisfied that the suit land belonged to the estate of the deceased and thus confirmed the same.
55. The court is thus satisfied that at all times material to this suit, the entire land parcel MUTOMO/UAE/30 was the property of Tabitha Wayua Mutaki (deceased) and formed part of her estate subject of Kitui High Court Succession Cause No. 316 of 2016
56.The court agrees with the interpretation of the provisions of Section 45 and 82 of the Law of Succession Act and authorities cited by Counsel for the Appellant that where a beneficiary purports to sell a property of a deceased person before the grant of letters of administration is confirmed and in contravention of section 45 of the Act, it amounts to intermeddling and the court cannot protect the purchaser.
57.The effect of the said sections is that the property of a deceased person cannot be lawfully dealt with by anybody unless such person is authorized to do so through a grant of letters of administration or probate of the deceased’s will, if any. Consequently any person who handles estate property without authority is guilty of intermeddling.
58.In this particular case, the property of Tabitha Mutaki Mulwa (Deceased), was not available for sale or for leasing out to the Respondent without the authority of a court and any such sale was illegal, null and void in contravention of the law and could not vest proprietary rights on the Respondent.
59.The Court finds that the trial court erred in holding that the 3rd defendant/Respondent herein had a right to sell the suit land by stating that; “ On the issue of ownership, the court holds that the 3rd Defendant having been left as the only surviving son of the deceased after the demise of his mother Tabitha Wayua Mutaki and his two sisters having been married off had the right to sell a portion of UAE Adjudication Area parcel No. 30 now registered as MUTOMO/UAE/30 as he waited for letters of administration, which fact he disclosed to the plaintiff\".
Whether there was a valid agreement for the sale of a portion of 2 acres out of land parcel number Mutomo/Uae/30 to the Respondent.
60.From the record of proceedings before the trial court, the Respondent herein testified and called three witnesses. However, neither he nor his witnesses produced any documents to prove the Respondent’s case.
61.On the other hand, the 2nd Appellant produced a copy of the certificate of title to the suit land in her name and a copy of the certificate of title to the suit land when it was previously in her deceased mother’s name, Tabitha Wayua Mutaki.
62.Section 26(1) of the Land Registration Act provides that:
“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme
63.In order to challenge the 2nd Appellant’s title, the Respondent had to prove fraud or misrepresentation in the acquisition of the title or that the title was acquired illegally, unprocedurally or through a corrupt scheme.
64.The record of the trial court does not show that the Respondent tendered any evidence nor did he produce the agreement he claims to have entered into with the 1st Appellant. The trial court referred to the evidence of witnesses as proof of the sale yet the Respondent and his witnesses referred to a written agreement. No reason was given for not producing the said document. This court finds that the trial court erred in relying on an agreement that was not produced before the Court for scrutiny and relying on evidence from the Plaintiff’s witnesses.
65.Section 107 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact lies on any particular person. In the present case, the Respondent had the burden to prove the existence and legality of the sale agreement and in the court\'s view, he did not discharge this burden.
66.Section 3 (3) of the Law of Contract Act CAP 23, provides as follows;
“No suit shall be brought upon a contract for the 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.”
67.The requirement that an agreement for the sale or disposition of any interest in land must be in writing, was in the present case not proved. The Court of Appeal in the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR deduced that:
“If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.”
68.On the 1st issue for determination, the Court finds that the 1st Appellant and the Respondent as the parties to the alleged sale or lease transaction of land parcel number Mutomo/Uae/30 had no legal capacity to sell or purchase and/or enter into an agreement for the sale or lease of the suit land for the reason that the land was the property of Tabitha Wayua Mutaki (Deceased).
69. On the 2nd issue for determination, the Court finds and holds that there was no valid agreement for the sale of a portion of 2 acres out of land parcel number Mutomo/Uae/30 between the 1st Appellant and the Respondent.
70.This court finds that the trial court erred in determining that there was a sale of a portion of the suit land by the 1st Appellant to the Respondent and in entering judgment in favour of the Respondent against the Appellants.
71.The final determination of the Court is that the appeal herein has merit and makes the following orders;
1)The appeal is allowed.
2)The judgement of the Honourable Senior Principal Magistrate Z.J Nyakundi, in Mutomo Civil Case Number 103 of 2016 is hereby set aside and the suit before the trial court is hereby dismissed.
3)The Appellants are awarded the costs of the suit before the trial court and before the appellate court.
Dated, Signed and Delivered at Kitui this 17th of October 2024
L. G. KIMANI
JUDGE
Judgement read virtually in the presence of
No attendance for the Appellant
No attendance for the Respondent
72.