Peter Kigo Waweru (hereinafter referred to as the appellant) filed a suit in the magistrates court at Nakuru claiming that at all material times Mbogo Kinyenyeri (hereinafter referred to as the appellant) is the registered owner of L.R. Nakuru Municipality Block/ 29/648 (Ronda) and is the absolute proprietor of the said land. The appellant claimed that on the 15th day of November 2011, the respondent did pour buildings stones on the appellant’s land about 600 feet in readiness to erect a structure on his land.
The appellant stated that upon inquiry of the said pouring of stones on his land the respondent claimed that the parcel was his. According, to the appellant, the acts of the respondent are bordering on encroachment and trespass and unless the respondent by himself, agents and/or servants are restrained by way of an injunction, the applicant will suffer irreparable loss. Despite demand and notice of intention to sue being given the respondent has neglected refused and/or ignored to desist from the acts aforementioned rendering the institution of the suit in the lower court.
The appellant had prayed for judgment in terms of a permanent injunction restraining the respondent his agents, servants and any other persons from entering, occupying, remaining on, trespassing on it in any way interfering with all that entire parcel of land known as on Lr. Nakuru Municipality Block /29/648 (Ronda).
The respondent admitted that the appellant was the registered owner of the land and that he deposited materials on the land but claimed that he bought 1/8 of the suit land from the appellant. The respondent took possession of the portion in 1994 and put up a semi-permanent house where he lived with the family. When he purchased the land there was a house which the appellant sold him at Kshs25,000. He paid part of the money but the appellant refused to receive the balance of Ksh7,610 and refused to process a title for the respondent. The respondent further filed a counter claim whose import is that he was entitled to a portion of the land measuring 0.0562 Hectares out of the suit property and prayed for orders that the appellant be ordered to cause a Title Deed for 0.0562 Hectares to be issued in the name of the respondent out of L.R NO. Nakuru Municipality Block 29/ 648 (RONDA) and in default the Executive Officer of this Honorable Court be allowed to execute all documents necessary to enable a Title Deed to be processed.
When the matter was placed before the Learned Magistrate for hearing, the appellant testified that he was to sell the plot but the sale never materialized because the respondent defaulted. That was when he stopped him from pouring stones on the land. On cross examination he stated that his agreement was made in 1993 and the consideration was Ksh50,000 for 1/8 of an acre. The balance of Ksh28,000 was to be paid within 6 months. There was an agreement for the Ksh25,000 for the house. The balance for the house was Kshs7,000. The respondent defaulted.
The respondent on his part testified that there was an agreement on the sale of the land. He produced the same dated 25th November 1994. He bought the land and the house on the ground. The appellant refused to transfer the property. On cross examination he states that he owes the appellant Kshs7, 600.
In his judgment the learned magistrate found the appellant to be a dishonest man because he failed to disclose material facts of the matter. The learned Magistrate found that the appellant obtained an injunction against the respondent and yet the respondent was in possession of the property. The court found the respondent was honest in his evidence because he admitted that he owed the appellant kshs7,600. The court found that the appellant is entitled to Kshs7,600 whereas the respondent is entitled to a portion of the land measuring 0.0562 Hectares out of the suit property and ordered the appellant to cause the Title Deed for 0.0562 Hectares to be issued in the name of the respondent out of L.R NO. Nakuru Municipality Block 29/ 648 (RONDA) and in default the Executive Officer of this Honorable Court be allowed to execute all documents necessary to enable a Title Deed to be processed.
The appellant was dissatisfied with the judgment on grounds that the learned trial magistrate erred in law and fact in failing to hold that the counterclaim by the Defendant had been overtaken by events.
Moreover, that the learned trial Magistrate erred in law and fact in failing to hold that the respondent had breached the terms of the contract and that the Defendant was a trespasser the appellant having obtained the title to the subject matter and was the absolute owner.
The appellant contends that the learned trial magistrate erred in law and fact by making a finding that the Respondent was a bonafide purchaser of 1 /8 of an acre yet he had failed to perform his part and that the learned trial magistrate erred in law and fact in dismissing the Appellant's claim on grounds of not being truthful in evidence yet the evidence on record shows otherwise.
The appellant argues that the learned trial magistrate erred in law and fact in not appreciating the decision to order for specific performance does no arise and that the claim by the Respondent was time barred and the court lacked jurisdiction to give such orders.
Furthermore that the Learned trial magistrate erred in law and fact in not appreciating the decision to order for specific performance does no arise and that the claim by the Respondent was time barred and the court lacked jurisdiction to give such orders and that the learned trial magistrate erred in law and fact in ignoring the Appellant's submissions. Lastly, that the learned trial Magistrate misapprehended the law and facts and arrived at an erroneous conclusion.
The appellant prays for orders that the appeal be allowed and the judgment delivered by the trial court on 10th January 2013 in Nakuru CMC No. 1171 of 2012 be set aside, varied and are vacated. That the respondent be condemned to pay the costs of this appeal.Parties filed submissions which I have considered carefully
With the memorandum of appeal.
This being the first appeal, this court has a duty to re-evaluate the facts and come to its conclusion. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424]. The appropriate standard of review established in cases of appeal can be stated in three complementary principles thus:
“I .. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
The facts of this case on record are that on 1st day of December 1993, the appellant entered into agreement with the respondent for sale of 1/8 of an acre of land to be excised from plot No 648 (Barut) farm. The price of the said property was Kshs50,000. The money was to be paid in instalments thus Kshs23,000 as first instalment. 27,000 as the 2nd instalment. The appellant was to give the respondent possession of the property upon payment of full purchase price. The applicant was to transfer to the respondent 1/8 of the land.
The 2nd agreement is dated 9th November 1997 where the appellant sold the respondent a house for Kshs25,000. The learned Magistrate observed that the appellant was not truthful and that he was a liar. This court did not hear the witness and therefore cannot fault the learned magistrate’s observation because he heard the direct evidence of parties. The fact that the appellant did not disclose that the respondent was in possession of the property depicted him as an untruthful man. The agreement was clear that the respondent was to take possession after payment in full. The fact that he took possession indicates that he had paid for the property.
I do find that the learned magistrate analyzed the facts and reached a proper decision. The issue of absence of the consent of Land Control Board could not void the transaction between the appellant and the respondent because the appellant had given the respondent possession of the suit property and had been paid the full purchase price. The appellant’s action of receiving the full purchase price and putting the respondent in possession created a constructive trust in favour of the responden.
In the case of Will Kimutai Kitilit Vs Michael Kibet (2018) eKLR the court held that:-
“[26] For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land subject to the Land Control Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.
[27] Turning to the present appeal, the learned Judge made the findings of fact in terms of paragraph 3 above and also made a finding of law that the appellant created a constructive trust in favour of the respondent. It was not in dispute that the appellant sold a 2 acre portion of his land comprising of 2.440 Hectares to the respondent in 2008. He gave possession of the land to the respondent who fenced the land and developed a portion of half an acre by planting trees. The respondent paid the last instalment of the purchase price in 2010. However, the appellant did not transfer the 2 acres to the respondent and instead caused the whole land to be registered in his name on 4th December, 2012, and filed a suit for the eviction of the respondent thereafter. By the time the appellant caused himself to be registered as the proprietor of the whole piece of land he was a constructive trustee for the respondent and it would be unjust and inequitable to allow the appellant to retain the 2 acres that he had sold to the respondent in the circumstances of the case.
As we have held in essence that, the lack of the consent of Land Control Board does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust, we find that the trial court reached the correct decision and therefore the appeal has no merit.
[28] For the foregoing reasons, the appeal is dismissed with costs to the respondent.”
Moreover, I do find that the learned magistrate properly held that the appellant had breached the agreement because the respondent paid the purchase price for the land in full but the appellant declined to grant transfer of the land to the respondent. The upshot of the above is that the appeal has no merit and is dismissed with costs.
The appellant stated that upon inquiry of the said pouring of stones on his land the respondent claimed that the parcel was his. According, to the appellant, the acts of the respondent are bordering on encroachment and trespass and unless the respondent by himself, agents and/or servants are restrained by way of an injunction, the applicant will suffer irreparable loss. Despite demand and notice of intention to sue being given the respondent has neglected refused and/or ignored to desist from the acts aforementioned rendering the institution of the suit in the lower court.
The appellant had prayed for judgment in terms of a permanent injunction restraining the respondent his agents, servants and any other persons from entering, occupying, remaining on, trespassing on it in any way interfering with all that entire parcel of land known as on Lr. Nakuru Municipality Block /29/648 (Ronda).
The respondent admitted that the appellant was the registered owner of the land and that he deposited materials on the land but claimed that he bought 1/8 of the suit land from the appellant. The respondent took possession of the portion in 1994 and put up a semi-permanent house where he lived with the family. When he purchased the land there was a house which the appellant sold him at Kshs25,000. He paid part of the money but the appellant refused to receive the balance of Ksh7,610 and refused to process a title for the respondent. The respondent further filed a counter claim whose import is that he was entitled to a portion of the land measuring 0.0562 Hectares out of the suit property and prayed for orders that the appellant be ordered to cause a Title Deed for 0.0562 Hectares to be issued in the name of the respondent out of L.R NO. Nakuru Municipality Block 29/ 648 (RONDA) and in default the Executive Officer of this Honorable Court be allowed to execute all documents necessary to enable a Title Deed to be processed.
When the matter was placed before the Learned Magistrate for hearing, the appellant testified that he was to sell the plot but the sale never materialized because the respondent defaulted. That was when he stopped him from pouring stones on the land. On cross examination he stated that his agreement was made in 1993 and the consideration was Ksh50,000 for 1/8 of an acre. The balance of Ksh28,000 was to be paid within 6 months. There was an agreement for the Ksh25,000 for the house. The balance for the house was Kshs7,000. The respondent defaulted.
The respondent on his part testified that there was an agreement on the sale of the land. He produced the same dated 25th November 1994. He bought the land and the house on the ground. The appellant refused to transfer the property. On cross examination he states that he owes the appellant Kshs7, 600.
In his judgment the learned magistrate found the appellant to be a dishonest man because he failed to disclose material facts of the matter. The learned Magistrate found that the appellant obtained an injunction against the respondent and yet the respondent was in possession of the property. The court found the respondent was honest in his evidence because he admitted that he owed the appellant kshs7,600. The court found that the appellant is entitled to Kshs7,600 whereas the respondent is entitled to a portion of the land measuring 0.0562 Hectares out of the suit property and ordered the appellant to cause the Title Deed for 0.0562 Hectares to be issued in the name of the respondent out of L.R NO. Nakuru Municipality Block 29/ 648 (RONDA) and in default the Executive Officer of this Honorable Court be allowed to execute all documents necessary to enable a Title Deed to be processed.
The appellant was dissatisfied with the judgment on grounds that the learned trial magistrate erred in law and fact in failing to hold that the counterclaim by the Defendant had been overtaken by events.
Moreover, that the learned trial Magistrate erred in law and fact in failing to hold that the respondent had breached the terms of the contract and that the Defendant was a trespasser the appellant having obtained the title to the subject matter and was the absolute owner.
The appellant contends that the learned trial magistrate erred in law and fact by making a finding that the Respondent was a bonafide purchaser of 1 /8 of an acre yet he had failed to perform his part and that the learned trial magistrate erred in law and fact in dismissing the Appellant's claim on grounds of not being truthful in evidence yet the evidence on record shows otherwise.
The appellant argues that the learned trial magistrate erred in law and fact in not appreciating the decision to order for specific performance does no arise and that the claim by the Respondent was time barred and the court lacked jurisdiction to give such orders.
Furthermore that the Learned trial magistrate erred in law and fact in not appreciating the decision to order for specific performance does no arise and that the claim by the Respondent was time barred and the court lacked jurisdiction to give such orders and that the learned trial magistrate erred in law and fact in ignoring the Appellant's submissions. Lastly, that the learned trial Magistrate misapprehended the law and facts and arrived at an erroneous conclusion.
The appellant prays for orders that the appeal be allowed and the judgment delivered by the trial court on 10th January 2013 in Nakuru CMC No. 1171 of 2012 be set aside, varied and are vacated. That the respondent be condemned to pay the costs of this appeal.Parties filed submissions which I have considered carefully
With the memorandum of appeal.
This being the first appeal, this court has a duty to re-evaluate the facts and come to its conclusion. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and facts and come up with its own findings and conclusions as was held in the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424]. The appropriate standard of review established in cases of appeal can be stated in three complementary principles thus:
“I .. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
The facts of this case on record are that on 1st day of December 1993, the appellant entered into agreement with the respondent for sale of 1/8 of an acre of land to be excised from plot No 648 (Barut) farm. The price of the said property was Kshs50,000. The money was to be paid in instalments thus Kshs23,000 as first instalment. 27,000 as the 2nd instalment. The appellant was to give the respondent possession of the property upon payment of full purchase price. The applicant was to transfer to the respondent 1/8 of the land.
The 2nd agreement is dated 9th November 1997 where the appellant sold the respondent a house for Kshs25,000. The learned Magistrate observed that the appellant was not truthful and that he was a liar. This court did not hear the witness and therefore cannot fault the learned magistrate’s observation because he heard the direct evidence of parties. The fact that the appellant did not disclose that the respondent was in possession of the property depicted him as an untruthful man. The agreement was clear that the respondent was to take possession after payment in full. The fact that he took possession indicates that he had paid for the property.
I do find that the learned magistrate analyzed the facts and reached a proper decision. The issue of absence of the consent of Land Control Board could not void the transaction between the appellant and the respondent because the appellant had given the respondent possession of the suit property and had been paid the full purchase price. The appellant’s action of receiving the full purchase price and putting the respondent in possession created a constructive trust in favour of the responden.
In the case of Will Kimutai Kitilit Vs Michael Kibet (2018) eKLR the court held that:-
“[26] For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Mwangi Maina decision that the equitable doctrines of constructive trust and proprietary estoppel are applicable and enforceable to land subject to the Land Control Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.
[27] Turning to the present appeal, the learned Judge made the findings of fact in terms of paragraph 3 above and also made a finding of law that the appellant created a constructive trust in favour of the respondent. It was not in dispute that the appellant sold a 2 acre portion of his land comprising of 2.440 Hectares to the respondent in 2008. He gave possession of the land to the respondent who fenced the land and developed a portion of half an acre by planting trees. The respondent paid the last instalment of the purchase price in 2010. However, the appellant did not transfer the 2 acres to the respondent and instead caused the whole land to be registered in his name on 4th December, 2012, and filed a suit for the eviction of the respondent thereafter. By the time the appellant caused himself to be registered as the proprietor of the whole piece of land he was a constructive trustee for the respondent and it would be unjust and inequitable to allow the appellant to retain the 2 acres that he had sold to the respondent in the circumstances of the case.
As we have held in essence that, the lack of the consent of Land Control Board does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust, we find that the trial court reached the correct decision and therefore the appeal has no merit.
[28] For the foregoing reasons, the appeal is dismissed with costs to the respondent.”
Moreover, I do find that the learned magistrate properly held that the appellant had breached the agreement because the respondent paid the purchase price for the land in full but the appellant declined to grant transfer of the land to the respondent. The upshot of the above is that the appeal has no merit and is dismissed with costs.