'
(Being an appeal from the Judgment of Hon. Alice Chemosop Towett in Eldama Ravine PMC ELC Case No.E017 of 2021 delivered on 9th September, 2024)
Introduction
1.The appellant herein, instituted a suit in the lower court seeking judgment against the respondent for inter alia an order of eviction of the respondent from the parcel of land known as Pokor/Keben/Gobot/418 (hereinafter referred to the suit property); an order of permanent injunction restraining the respondent, his servants and/or agents from inteferring with his peaceful enjoyment, occupation and possession of the suit property; Kshs. 40,000/- being unpaid rent, mesne profits of Kshs.150,000/-.
2.The appellant suit was premised on the grounds that he had entered into an oral agreement with the respondent pursuant to which he leased the suit property to the respondent at a cost of Kshs.1,000,000/- for a period of 10 years effective from February 2010; that after the lease term expired, he informed the respondent of his intention to take possession of the suit property but the respondent refused to vacate the suit property.
3.Terming the respondent’s continued use and possession of the suit property trespass to land, the appellant lamented that his efforts to get the respondent vacate the suit property had been futile.
4.The appellant pleaded that pursuant to the agreement entered into between him and the respondent, the respondent paid him Kshs. 960,000/- leaving Kshs. 40,000/- unpaid, which balance he claimed from the respondent. The appellant also contended that the respondent benefited from his use and possession of the suit property as he was paid by Kenya Power and Lighting Company (KPLC) for installation of a powerline in the suit property.
5.The respondent filed a defence and counterclaim, dated 6th October 2021 and amended on 17th January 2023, in which he denied the appellant’s claim that the agreement entered into between them was for lease of the suit property. The respondent pleaded/contended that the agreement was for sale of the suit property; that upon paying the purchase price of Kshs. 1,000,000/- he took possession of the suit property and effected development thereon as the legal owner of the suit property. The respondent further contended that he had acquired interest in the suit property pursuant to the agreement entered into between the appellant and him and on account of having been in adverse possession of the suit property.
6.The appellant filed a reply to defence, dated 16th November, 2021 in which he reiterated his pleaded case.
7.When the case came up for hearing, the appellant rehashed his pleaded case. The appellant availed two witnesses, Christine Tuitoek (PW1) and Patrick Tuitoek (PW3) who supported his claim that the oral agreement entered between him and respondent was for lease of the suit property as opposed to an agreement for sale of the suit property.
8.The respondent equally rehashed his pleaded case and availed two witnesses namely Stephen Kiplagat (DW1) and Reuben Kiptanui (DW2) who testified that the agreement entered into between the appellant and the respondent was for the sale of the suit property as opposed to lease.
9.Upon considering the evidence adduced before her, the learned trial magistrate determined that the appellant had failed to prove his case on a balance of probabilities and dismissed it with costs to the respondent. In doing so, the learned trial magistrate inter alia stated/held:-
“...in the instant case, the plaintiff informed court that he leased his parcel Pokor/Gobat/418 to the defendant in the year 2010 for a period of 10 years at a price of Kshs. 1,000,000/-. He called 2 witnesses who are both his children.
PW1, Christine Tuitoek testified that she was the one who introduced the defendant to her father and that her dad (PW2) later leased out the land to the defendant. PW1 did not mention whether she was present at the time of negotiations or payment of the said lease.
PW3, Patrick Kipkemboi Tuitoek, a son to the plaintiff (PW2) contradicted his sister (PW1) when he told court that his dad had been friend with the defendant for a long time. He further told court that he did not witness the oral agreement between his dad and the defendant.
From the plaintiff’s case, it is apparent that he has not called any witness who witnessed either the negotiations that culminated in the said lease. In my view the testimony has not been corroborated. Further I take note that witnesses to the plaintiff are his children and would not as such call them independent witnesses. On the other hand, the defendant called two witnesses. On his part the defendant testified that he bought the land from the plaintiff at Kshs. 1,000,000/- which he paid in three instalments. He told the court he was informed about the suit property on sale by Reuben Kiptanui at his business premise and that the said Reuben connected him with the seller (plaintiff herein). The plaintiff in his examination in chief conceded that the defendant accompanied by Reuben (DW2) and Kipkure (DW3).
Reuben told court that the plaintiff herein is his uncle and that he witnessed the negotiations where the plaintiff sold parcel No. Pokor/Keben/Gobat/418 to the defendant herein.
DW2 testified that in fact he assisted the parties in counting the money when the first, second and third instalments were being paid a month apart from each instalment. That the parties herein were ready for negotiations and subsequent payments at his shop within Mogotio Sub County.
DW1, DW2’s testimonies were further corroborated by DW3 who testified on oath that he indeed was present during negotiations and subsequent payment of the instalments to completion for sale of the suit property to the defendant herein.
The defendant informed the court that after he cleared the payments he commenced to develop the property by constructing permanent houses, one for his mom and also his house with other structures; that he remained living peacefully on the suit property until 16/12/2020 when he received a demand letter from the plaintiff on allegation that he was on lease which had expired.
In my considered view the oral agreement between the parties were based on mutual trust. The fact that the defendant went ahead to erect permanent structures on the suit property after payment implies that he believed that he now owned the parcel of land. It is highly unlikely that a lessor would allow a lessee to erect permanent structure/home on his property when he/she has leased the property for only 10 years and most especially at home in a rural area.
From the evidence adduced I’m afraid the plaintiff failed to prove his claim on a balance of probability. It is apparent based on the testimonies of the witnesses coupled with the plaintiff’s demeanor in court that he sold the suit property to the defendant but having realized that the land has appreciated in price overtime and the fact that he was yet to transfer the title saw an opportunity to make more money....It therefore follows that the plaintiff’s suit is dismissed with cost to the defendant....”.
10.Dissatisfied with the decision of the trial court the appellant appealed to this court on the grounds that the learned trial magistrate erred in law and fact by:-
(i)Finding that he had not proved his case on a balance of probability when there was evidence to the contrary that he had leased the suit property Pokor/Keben/Gobot/418 to the respondent;
(ii)Finding that the respondent had proved purchase of the suit property parcel number Pokor/Keben/418 when there was no cogent evidence in the form of a sale agreement between him and the appellant as envisaged under Section 3(3) of the Law of Contract Act and/or Section 38(1) of the Land Act 2012;
(iii)Failing to find that the respondent did not claim purchase and/or seek transfer and/or assert any purchaser’s right and/or interest over the suit property for the time he alleges he was in occupation until the filing of the lower court suit;
(iv)Disregarding his evidence and submissions thereby arriving at a manifestly wrong conclusion that he had not proved his case on a balance of probability;
(v)Finding that the court had jurisdiction to hear and determine the respondent’s counterclaim for adverse possession;
(vi)Failing to distinguish the numerous authorities cited by him on jurisdiction of the lower court regarding the issue of adverse possession and/or failing to adhere to the doctrine of stare decisis;
(vii)Failing to determine the issues in controversy and/or appreciate the issues before the court thereby arriving at a manifestly wrong conclusion that the respondent had proved his case on a balance of probability;
(viii)Holding him to higher standard of proof than on a balance of probability thereby misdirecting herself;
(ix)Finding that his evidence had not been corroborated for the reason that PW1 and PW3 are his children and therefore not independent witnesses;
(x)Failing to find that the respondent did not controvert his contention on the demand letter for vacant possession, dated 16th December 2020 and/or raise the issue of purchase;
(xi)Failing to find that the respondent’s contention of purchase of the suit property was an afterthought merely to counter his claim for possession;
(xii)Finding that there was a constructive trust between him and the respondent when there was evidence to the contrary that he had merely leased the suit property to the respondent in 2010;
(xiii)By presuming that he sold the suit property to the respondent when there was evidence to the contrary that no such sale took place;
(xiv)Finding the respondent had been in occupation of the suit property for more than 12 years from 2009 to 2020 when it was manifestly clear that he had taken possession in February 2010 and had fraudulently shifted the date of his alleged entry to the suit property to February 2009 merely to be within the 12 years to facilitate his claim for adverse possession;
(xv)Finding that the respondent had developed the suit property by erecting permanent structures on it when there was evidence to the contrary in the form of photographs showing that the structures were temporary/semi permanent.
11.The appellant prays that his appeal be allowed with costs, the judgment of the lower court delivered on 9th September 2024 be set aside and judgment be entered for him as prayed for in his plaint.
12.The appeal was disposed of by way of written submissions.
Analysis and determination
13.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 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, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.
14.I have also read and considered the pleadings filed in the lower court, the judgment of the lower court appealed from, the grounds taken up in this appeal and the submissions filed by the parties.
15.From the pleadings, judgment, grounds of appeal and the submissions filed by the parties to this appeal, I find the issues for the court’s determination are:-
(i)Whether failure to extract a decree and make it part of the record of appeal in this case renders the appeal fatally defective?
(ii)Whether the oral transaction entered into between the appellant and the respondent in respect of the suit property was for lease or sale of the suit property;
(iii)Subject to the outcome of (ii) above whether the learned trial magistrate erred by determining that there was a constructive trust between the appellant and the respondent over the suit property?
(iv)Whether the learned trial magistrate erred by determining that it had jurisdiction to hear and determine a claim based on adverse possession;
(v)What orders should the court make.
16.On whether failure to extract a decree and make it part of the record of appeal in this case renders the appeal fatally defective, the respondent points out that the appellant did not include the judgment and decree appealed from in his record of appeal. Based on the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules and the decisions in the cases of Kyuma v Kyema (1988) KLR 185; Kirimi v Meru Central Dairy Cooperative Ltd Civil Appeal No. 18 of 2021; Bwana Mohamed Bwana v. Silvano Buko & 2 Others, SC App No. 20 of 2014 (2014) e KLR; Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, SC Petition No. 14 of 2013 (2014) eKLR, the respondent submits that the omitted documents, judgment and decree, are mandatory and cannot be dispensed with; that the omission is not a mere technicality which is capable of being cured under Article 159(2)(d) of the Constitution and that the defect goes to the very competence of the appeal. Further, that without a decree/order there is nothing to appeal from.
17.Arguing that this court cannot exercise its appellate jurisdiction on an incomplete record, the respondent urges the court to strike out the appeal and/or dismiss it in limine.
18.The appellant neither addressed this issue in its submissions nor offered any explanation why he did not extract a decree and make it part of the record of appeal. Concerning the judgment, though not forming part of the record of appeal, I note that it is part of the court proceedings.
19.As to whether failure to extract the decree and make it part of the record of appeal renders the appeal fatally defective, the law is not settled on that issue. For instance in Mungai v Giceru Civil Appeal E034 of 2024 (2025) KEHC 3243 (KLR) (11 February 2025) (Judgment) the court stated/held:-
“In addressing failure to include a decree in the Record of Appeal, the Court in the case of Nyota Tissue Products v Charles Wanga & 4 Others [2020] eKLR, stated thus: -“The rule applicable to the appeals to the High Court makes provision under Order 42 rule 13 (f) of the Civil Procedure Rules for the filing of a copy of the “judgment, order or decree appealed from and does not make it mandatory to attach the judgment and the decree. The Record of Appeal herein attached the Judgment of the trial court according to the requirements of Order 42 rule 13 (4) (f) of the Civil Procedure Rules, and in my respectful view, I would agree with the Court in Silver Bullet Bus case on the point, that it would be too draconian to strike out the appeal in these circumstances."
23.Further, in the case of Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR) the Court stated thus: -“30.I am of the view that the use of the conjunction "or" means that an appellant is not mandatorily obligated to attach both the Judgment and the decree. Further, a decree is an extract of the Judgment appealed from. A decree is defined under Section 2 of the Civil Procedure Act, Cap 21, Laws of Kenya as follows:31.In the present appeal, the appellant filed Kilifi Senior Principal Magistrate’s Court Civil Case No. 326 of 2018. After hearing the parties, Judgment was delivered dismissing the appellant’s suit, with costs to the respondent. In this court’s view, the failure to include a certified copy of the decree in the Record of Appeal should not invalidate the present appeal for reasons of non-compliance as this court has had the benefit of reading Judgment which was rendered by the Trial Court.”
24.Similarly in the case of Dragon Fire Protection Limited v African Highlands Produce Co Ltd [2023] KEHC 1735 (KLR) the Court declined to strike out an appeal due to failure to attach a decree. The Court held that:-“The Record of Appeal herein attached the judgment of the trial court according to the requirements of Order 42 Rule 13 (4) (f) of the Civil Procedure Rules and in my respectful view, I would be too draconian to strike out the appeal in these circumstances.”
25.The record of appeal herein has with it, the Trial Court’s certified copy of judgement which dismissed the Appellant’s claim as well as the Respondent’s counterclaim. The Judgement itself has enough material for consideration. The omission does not go in the substance of the appeal.
26.Furthermore, my interpretation of Order 42 Rule 13(4) (f) of the Civil Procedure Rules is that it does not make it mandatory to attach a decree and judgement and therefore not fatal.”
20.The circumstances of this case being similar to those in Mungai v Giceru (supra), which decision I find persuasive, I find the defect in the instant appeal not fatal. Consequently, I return a negative verdict to the issue, at least as it relates to the peculiar circumstances of this case where the judgment appealed from forms part of the court proceedings.
21.On whether the oral transaction entered into between the appellant and the respondent in respect of the suit property was for lease or sale of the suit property, whilst the appellant in his pleading, evidence and submissions contends that the transaction was for lease of the suit property, upon evaluation of the evidence adduced in the lower court concerning that issue, I find the account offered by the respondent to be more believable compared to that offered by the appellant. This is so because the evidence of the respondent was supported by independent witnesses to the transactions. The persons called as witnesses to the transaction by the appellant were not strictly speaking witnesses as they did not participate in the negotiations that led to the transaction between the appellant and the respondent. Their evidence concerning the transaction was just but hearsay hence unreliable.
22.Being the one who desired judgment based on the allegation that the oral transaction entered between him and the respondent was for lease of the suit property as opposed to a sale of land transaction, the burden was on the appellant to prove that the transaction was indeed one of lease of land as opposed to sell of the land.
23.As to whether the appellant discharged the evidential burden placed on him, he merely claimed that the transaction was one of lease as opposed to sale of land which account was found to be unbelievable on account of the totality of the evidence adduced before the trial court. The trial court also determined that issue based on the conduct of the parties and the demeaner of the appellant. Upon re-evaluation of the evidence adduced before the lower court, I find nothing that can form a ground of departing from the decision of the lower court on the nature of transaction entered between the appellant and the respondent.
24.As to whether the learned trial magistrate erred by determining that there was constructive trust between the appellant and the respondent over the suit property, the evidence adduced in this case shows that the respondent paid the agreed purchase price, took possession of the suit property and effected development on the suit property based on the said oral sale of the suit property.
25.Whereas the said oral transaction offends the provisions of Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, 2012, it nevertheless founds a cause of action in favour of the respondent based on fact that he was given possession of the suit property by the seller thereby creating an overriding interest in his favour in respect thereof.
26.I agree with the respondent’s submissions that in the circumstances of this case there, exists a constructive trust which the court could enforce in his favour notwithstanding the fact that the agreement on which the transaction was premised is oral. In reaching that determination, I have taken taken into account the decisions in the cases of Macharia Mwangi Maina & 87 others vs. Davidson Mwangi Kagiri (2014) eKLR; Mwangi & another v. Mwangi (1986)KLR 328; Aliaza v. Saul (Civil Appeal No.134 of 2017)(2022) KECA 583 (KLR) (24 June 2022)(judgment) and William Kipsoi Sigei v. Kipkoech Arusei & Another (2019) eKLR.
27.In William Kipsoi Sigei v. Kipkoech Arusei (supra) the Court of Appeal stated/held:-
“Taking into account the Macharia Mwangi Maina decision and the Willy Kimutai Kitilit decision alongside the circumstances of this case, we are of the view that the fact that the appellant herein, received the full purchase price for the property, allowed the 1st respondent to take possession, and for a period of at least fourteen years, let him remain on the property undisturbed, a constructive trust had been created. We agree with the English decision Yaxley v. Gotts and Another, (2000) Ch 162, where it was held that an oral agreement for sale of property, created an interest in the property even though void and unenforceable as a contract; but the oral agreement was still enforceable on the basis of a constructive trust or proprietary estoppel. This was also the approach taken in Macharia Mwangi Maina decision where the court observed that the appellant had put the respondent into possession of the suit property with the intention that he was to transfer the properties purchased to them and as such, a constructive trust had been created and the appellant could not renege.”
28.As to whether the lower court erred by determining that it had jurisdiction to hear and determine a claim based on adverse possession, the appellant submits as follows:-
“...from the foregoing court of appeal authority (referring to the decision in the case of Pauline Chemuge Sugawara and Nairuko ene Mutarakwa Kiruti & 3 others), it is manifestly clear that the magistrate court has no jurisdiction whatsoever to determine issues of adverse possession. It is apparent that the trial magistrate circumvented this issue by holding that it had jurisdiction to handle it...we submit that it is expected that an argument can be raised trying to justify the jurisdiction of the magistrates courts as conferred by the Magistrates Court Act 2015 and the gazettement of some Magistrates courts to handle land matters. On this issue we submit that the operative Act, for purposes of determining jurisdiction is the Limitation of Actions Act which provides under Section 9, 17, 37 & 38 provides the cause of action on adverse possession.
The action on adverse possession is not provided under the Environment and Land Act, 2011, the land registration act, 2012 or the Magistrates Court Act, 2015...It is manifestly clear that the learned trial magistrate fell into error by bestowing herself with jurisdiction on adverse possession by failing to adhere to the doctrine of stare decisis....
We therefore submit that the Magistrate’s Court is not seized with jurisdiction to hear and determine the issue of adverse possession hence the respondent counterclaim on adverse possession ought to have been struck out in the 1st instance. However, it became the cornerstone of the respondent’s successful suit on the counterclaim yet it is trite law jurisdiction is everything and without it a court must down its tools”.
29.In his submissions, the respondent concedes that Magistrate Courts do not have jurisdiction to hear and determine a claim for adverse possession but submits that before the issue was settled by the Court of Appeal, there were decisions of superior courts to the effect that Magistrate Courts had jurisdiction to hear and determine cases based on adverse possession.
30.Based on the decision of Appeal in the case of Sugawara V. Kiruti (Civil Appeal E141 of 2022)(2024) KECA, where it was determined that subordinate courts have no jurisdiction to hear and determine claims based adverse possession, I agree with the appellant’s submission that the trial magistrate erred by determining that it had jurisdiction to hear and determine the respondent’s counterclaim on adverse possession. Be that as it may, a review of the decision of the lower court shows that besides determining that the respondent had acquired interest in the suit property by virtue of having been in adverse possession thereof, she also determined that the appellant held the suit property in trust for the respondent on account of the oral transaction they had entered into.
31.Having determined that the transaction was one of sale as opposed to lease of land, as claimed by the appellant, on the strength of the decision in the case of William Kipsoi Sigei v. Kipkoech Arusei (supra), which decision I find to be applicable in the circumstances of this case as it relates to whether there existed a constructive trust in favour of the respondent on account of the oral sale agreement, I find and hold that the learned magistrate did not errer by determining that the appellant held the suit property in trust for the respondent.
32.The upshot of the foregoing is that the appellant has not made up a case for being granted the reliefs sought in the appeal. Consequently, I dismiss the appeal with half costs to the respondent since the appeal has partially succedeed.
33.Orders accordingly.
Dated, signed and delivered this 28th day of October, 2025.
Judgment delivered virtually in the presence of;-
-Mr. Chebii for Appellant.
-Mr. Alusa holding brief for Ms Cheloti for the respondent.
-CA: Ian/Christine.'
(Being an appeal from the Judgment of Hon. Alice Chemosop Towett in Eldama Ravine PMC ELC Case No.E017 of 2021 delivered on 9th September, 2024)
Introduction
1.The appellant herein, instituted a suit in the lower court seeking judgment against the respondent for inter alia an order of eviction of the respondent from the parcel of land known as Pokor/Keben/Gobot/418 (hereinafter referred to the suit property); an order of permanent injunction restraining the respondent, his servants and/or agents from inteferring with his peaceful enjoyment, occupation and possession of the suit property; Kshs. 40,000/- being unpaid rent, mesne profits of Kshs.150,000/-.
2.The appellant suit was premised on the grounds that he had entered into an oral agreement with the respondent pursuant to which he leased the suit property to the respondent at a cost of Kshs.1,000,000/- for a period of 10 years effective from February 2010; that after the lease term expired, he informed the respondent of his intention to take possession of the suit property but the respondent refused to vacate the suit property.
3.Terming the respondent’s continued use and possession of the suit property trespass to land, the appellant lamented that his efforts to get the respondent vacate the suit property had been futile.
4.The appellant pleaded that pursuant to the agreement entered into between him and the respondent, the respondent paid him Kshs. 960,000/- leaving Kshs. 40,000/- unpaid, which balance he claimed from the respondent. The appellant also contended that the respondent benefited from his use and possession of the suit property as he was paid by Kenya Power and Lighting Company (KPLC) for installation of a powerline in the suit property.
5.The respondent filed a defence and counterclaim, dated 6th October 2021 and amended on 17th January 2023, in which he denied the appellant’s claim that the agreement entered into between them was for lease of the suit property. The respondent pleaded/contended that the agreement was for sale of the suit property; that upon paying the purchase price of Kshs. 1,000,000/- he took possession of the suit property and effected development thereon as the legal owner of the suit property. The respondent further contended that he had acquired interest in the suit property pursuant to the agreement entered into between the appellant and him and on account of having been in adverse possession of the suit property.
6.The appellant filed a reply to defence, dated 16th November, 2021 in which he reiterated his pleaded case.
7.When the case came up for hearing, the appellant rehashed his pleaded case. The appellant availed two witnesses, Christine Tuitoek (PW1) and Patrick Tuitoek (PW3) who supported his claim that the oral agreement entered between him and respondent was for lease of the suit property as opposed to an agreement for sale of the suit property.
8.The respondent equally rehashed his pleaded case and availed two witnesses namely Stephen Kiplagat (DW1) and Reuben Kiptanui (DW2) who testified that the agreement entered into between the appellant and the respondent was for the sale of the suit property as opposed to lease.
9.Upon considering the evidence adduced before her, the learned trial magistrate determined that the appellant had failed to prove his case on a balance of probabilities and dismissed it with costs to the respondent. In doing so, the learned trial magistrate inter alia stated/held:-
“...in the instant case, the plaintiff informed court that he leased his parcel Pokor/Gobat/418 to the defendant in the year 2010 for a period of 10 years at a price of Kshs. 1,000,000/-. He called 2 witnesses who are both his children.
PW1, Christine Tuitoek testified that she was the one who introduced the defendant to her father and that her dad (PW2) later leased out the land to the defendant. PW1 did not mention whether she was present at the time of negotiations or payment of the said lease.
PW3, Patrick Kipkemboi Tuitoek, a son to the plaintiff (PW2) contradicted his sister (PW1) when he told court that his dad had been friend with the defendant for a long time. He further told court that he did not witness the oral agreement between his dad and the defendant.
From the plaintiff’s case, it is apparent that he has not called any witness who witnessed either the negotiations that culminated in the said lease. In my view the testimony has not been corroborated. Further I take note that witnesses to the plaintiff are his children and would not as such call them independent witnesses. On the other hand, the defendant called two witnesses. On his part the defendant testified that he bought the land from the plaintiff at Kshs. 1,000,000/- which he paid in three instalments. He told the court he was informed about the suit property on sale by Reuben Kiptanui at his business premise and that the said Reuben connected him with the seller (plaintiff herein). The plaintiff in his examination in chief conceded that the defendant accompanied by Reuben (DW2) and Kipkure (DW3).
Reuben told court that the plaintiff herein is his uncle and that he witnessed the negotiations where the plaintiff sold parcel No. Pokor/Keben/Gobat/418 to the defendant herein.
DW2 testified that in fact he assisted the parties in counting the money when the first, second and third instalments were being paid a month apart from each instalment. That the parties herein were ready for negotiations and subsequent payments at his shop within Mogotio Sub County.
DW1, DW2’s testimonies were further corroborated by DW3 who testified on oath that he indeed was present during negotiations and subsequent payment of the instalments to completion for sale of the suit property to the defendant herein.
The defendant informed the court that after he cleared the payments he commenced to develop the property by constructing permanent houses, one for his mom and also his house with other structures; that he remained living peacefully on the suit property until 16/12/2020 when he received a demand letter from the plaintiff on allegation that he was on lease which had expired.
In my considered view the oral agreement between the parties were based on mutual trust. The fact that the defendant went ahead to erect permanent structures on the suit property after payment implies that he believed that he now owned the parcel of land. It is highly unlikely that a lessor would allow a lessee to erect permanent structure/home on his property when he/she has leased the property for only 10 years and most especially at home in a rural area.
From the evidence adduced I’m afraid the plaintiff failed to prove his claim on a balance of probability. It is apparent based on the testimonies of the witnesses coupled with the plaintiff’s demeanor in court that he sold the suit property to the defendant but having realized that the land has appreciated in price overtime and the fact that he was yet to transfer the title saw an opportunity to make more money....It therefore follows that the plaintiff’s suit is dismissed with cost to the defendant....”.
10.Dissatisfied with the decision of the trial court the appellant appealed to this court on the grounds that the learned trial magistrate erred in law and fact by:-
(i)Finding that he had not proved his case on a balance of probability when there was evidence to the contrary that he had leased the suit property Pokor/Keben/Gobot/418 to the respondent;
(ii)Finding that the respondent had proved purchase of the suit property parcel number Pokor/Keben/418 when there was no cogent evidence in the form of a sale agreement between him and the appellant as envisaged under Section 3(3) of the Law of Contract Act and/or Section 38(1) of the Land Act 2012;
(iii)Failing to find that the respondent did not claim purchase and/or seek transfer and/or assert any purchaser’s right and/or interest over the suit property for the time he alleges he was in occupation until the filing of the lower court suit;
(iv)Disregarding his evidence and submissions thereby arriving at a manifestly wrong conclusion that he had not proved his case on a balance of probability;
(v)Finding that the court had jurisdiction to hear and determine the respondent’s counterclaim for adverse possession;
(vi)Failing to distinguish the numerous authorities cited by him on jurisdiction of the lower court regarding the issue of adverse possession and/or failing to adhere to the doctrine of stare decisis;
(vii)Failing to determine the issues in controversy and/or appreciate the issues before the court thereby arriving at a manifestly wrong conclusion that the respondent had proved his case on a balance of probability;
(viii)Holding him to higher standard of proof than on a balance of probability thereby misdirecting herself;
(ix)Finding that his evidence had not been corroborated for the reason that PW1 and PW3 are his children and therefore not independent witnesses;
(x)Failing to find that the respondent did not controvert his contention on the demand letter for vacant possession, dated 16th December 2020 and/or raise the issue of purchase;
(xi)Failing to find that the respondent’s contention of purchase of the suit property was an afterthought merely to counter his claim for possession;
(xii)Finding that there was a constructive trust between him and the respondent when there was evidence to the contrary that he had merely leased the suit property to the respondent in 2010;
(xiii)By presuming that he sold the suit property to the respondent when there was evidence to the contrary that no such sale took place;
(xiv)Finding the respondent had been in occupation of the suit property for more than 12 years from 2009 to 2020 when it was manifestly clear that he had taken possession in February 2010 and had fraudulently shifted the date of his alleged entry to the suit property to February 2009 merely to be within the 12 years to facilitate his claim for adverse possession;
(xv)Finding that the respondent had developed the suit property by erecting permanent structures on it when there was evidence to the contrary in the form of photographs showing that the structures were temporary/semi permanent.
11.The appellant prays that his appeal be allowed with costs, the judgment of the lower court delivered on 9th September 2024 be set aside and judgment be entered for him as prayed for in his plaint.
12.The appeal was disposed of by way of written submissions.
Analysis and determination
13.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 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, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.
14.I have also read and considered the pleadings filed in the lower court, the judgment of the lower court appealed from, the grounds taken up in this appeal and the submissions filed by the parties.
15.From the pleadings, judgment, grounds of appeal and the submissions filed by the parties to this appeal, I find the issues for the court’s determination are:-
(i)Whether failure to extract a decree and make it part of the record of appeal in this case renders the appeal fatally defective?
(ii)Whether the oral transaction entered into between the appellant and the respondent in respect of the suit property was for lease or sale of the suit property;
(iii)Subject to the outcome of (ii) above whether the learned trial magistrate erred by determining that there was a constructive trust between the appellant and the respondent over the suit property?
(iv)Whether the learned trial magistrate erred by determining that it had jurisdiction to hear and determine a claim based on adverse possession;
(v)What orders should the court make.
16.On whether failure to extract a decree and make it part of the record of appeal in this case renders the appeal fatally defective, the respondent points out that the appellant did not include the judgment and decree appealed from in his record of appeal. Based on the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules and the decisions in the cases of Kyuma v Kyema (1988) KLR 185; Kirimi v Meru Central Dairy Cooperative Ltd Civil Appeal No. 18 of 2021; Bwana Mohamed Bwana v. Silvano Buko & 2 Others, SC App No. 20 of 2014 (2014) e KLR; Law Society of Kenya v Centre for Human Rights & Democracy & 12 Others, SC Petition No. 14 of 2013 (2014) eKLR, the respondent submits that the omitted documents, judgment and decree, are mandatory and cannot be dispensed with; that the omission is not a mere technicality which is capable of being cured under Article 159(2)(d) of the Constitution and that the defect goes to the very competence of the appeal. Further, that without a decree/order there is nothing to appeal from.
17.Arguing that this court cannot exercise its appellate jurisdiction on an incomplete record, the respondent urges the court to strike out the appeal and/or dismiss it in limine.
18.The appellant neither addressed this issue in its submissions nor offered any explanation why he did not extract a decree and make it part of the record of appeal. Concerning the judgment, though not forming part of the record of appeal, I note that it is part of the court proceedings.
19.As to whether failure to extract the decree and make it part of the record of appeal renders the appeal fatally defective, the law is not settled on that issue. For instance in Mungai v Giceru Civil Appeal E034 of 2024 (2025) KEHC 3243 (KLR) (11 February 2025) (Judgment) the court stated/held:-
“In addressing failure to include a decree in the Record of Appeal, the Court in the case of Nyota Tissue Products v Charles Wanga & 4 Others [2020] eKLR, stated thus: -“The rule applicable to the appeals to the High Court makes provision under Order 42 rule 13 (f) of the Civil Procedure Rules for the filing of a copy of the “judgment, order or decree appealed from and does not make it mandatory to attach the judgment and the decree. The Record of Appeal herein attached the Judgment of the trial court according to the requirements of Order 42 rule 13 (4) (f) of the Civil Procedure Rules, and in my respectful view, I would agree with the Court in Silver Bullet Bus case on the point, that it would be too draconian to strike out the appeal in these circumstances."
23.Further, in the case of Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR) the Court stated thus: -“30.I am of the view that the use of the conjunction "or" means that an appellant is not mandatorily obligated to attach both the Judgment and the decree. Further, a decree is an extract of the Judgment appealed from. A decree is defined under Section 2 of the Civil Procedure Act, Cap 21, Laws of Kenya as follows:31.In the present appeal, the appellant filed Kilifi Senior Principal Magistrate’s Court Civil Case No. 326 of 2018. After hearing the parties, Judgment was delivered dismissing the appellant’s suit, with costs to the respondent. In this court’s view, the failure to include a certified copy of the decree in the Record of Appeal should not invalidate the present appeal for reasons of non-compliance as this court has had the benefit of reading Judgment which was rendered by the Trial Court.”
24.Similarly in the case of Dragon Fire Protection Limited v African Highlands Produce Co Ltd [2023] KEHC 1735 (KLR) the Court declined to strike out an appeal due to failure to attach a decree. The Court held that:-“The Record of Appeal herein attached the judgment of the trial court according to the requirements of Order 42 Rule 13 (4) (f) of the Civil Procedure Rules and in my respectful view, I would be too draconian to strike out the appeal in these circumstances.”
25.The record of appeal herein has with it, the Trial Court’s certified copy of judgement which dismissed the Appellant’s claim as well as the Respondent’s counterclaim. The Judgement itself has enough material for consideration. The omission does not go in the substance of the appeal.
26.Furthermore, my interpretation of Order 42 Rule 13(4) (f) of the Civil Procedure Rules is that it does not make it mandatory to attach a decree and judgement and therefore not fatal.”
20.The circumstances of this case being similar to those in Mungai v Giceru (supra), which decision I find persuasive, I find the defect in the instant appeal not fatal. Consequently, I return a negative verdict to the issue, at least as it relates to the peculiar circumstances of this case where the judgment appealed from forms part of the court proceedings.
21.On whether the oral transaction entered into between the appellant and the respondent in respect of the suit property was for lease or sale of the suit property, whilst the appellant in his pleading, evidence and submissions contends that the transaction was for lease of the suit property, upon evaluation of the evidence adduced in the lower court concerning that issue, I find the account offered by the respondent to be more believable compared to that offered by the appellant. This is so because the evidence of the respondent was supported by independent witnesses to the transactions. The persons called as witnesses to the transaction by the appellant were not strictly speaking witnesses as they did not participate in the negotiations that led to the transaction between the appellant and the respondent. Their evidence concerning the transaction was just but hearsay hence unreliable.
22.Being the one who desired judgment based on the allegation that the oral transaction entered between him and the respondent was for lease of the suit property as opposed to a sale of land transaction, the burden was on the appellant to prove that the transaction was indeed one of lease of land as opposed to sell of the land.
23.As to whether the appellant discharged the evidential burden placed on him, he merely claimed that the transaction was one of lease as opposed to sale of land which account was found to be unbelievable on account of the totality of the evidence adduced before the trial court. The trial court also determined that issue based on the conduct of the parties and the demeaner of the appellant. Upon re-evaluation of the evidence adduced before the lower court, I find nothing that can form a ground of departing from the decision of the lower court on the nature of transaction entered between the appellant and the respondent.
24.As to whether the learned trial magistrate erred by determining that there was constructive trust between the appellant and the respondent over the suit property, the evidence adduced in this case shows that the respondent paid the agreed purchase price, took possession of the suit property and effected development on the suit property based on the said oral sale of the suit property.
25.Whereas the said oral transaction offends the provisions of Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, 2012, it nevertheless founds a cause of action in favour of the respondent based on fact that he was given possession of the suit property by the seller thereby creating an overriding interest in his favour in respect thereof.
26.I agree with the respondent’s submissions that in the circumstances of this case there, exists a constructive trust which the court could enforce in his favour notwithstanding the fact that the agreement on which the transaction was premised is oral. In reaching that determination, I have taken taken into account the decisions in the cases of Macharia Mwangi Maina & 87 others vs. Davidson Mwangi Kagiri (2014) eKLR; Mwangi & another v. Mwangi (1986)KLR 328; Aliaza v. Saul (Civil Appeal No.134 of 2017)(2022) KECA 583 (KLR) (24 June 2022)(judgment) and William Kipsoi Sigei v. Kipkoech Arusei & Another (2019) eKLR.
27.In William Kipsoi Sigei v. Kipkoech Arusei (supra) the Court of Appeal stated/held:-
“Taking into account the Macharia Mwangi Maina decision and the Willy Kimutai Kitilit decision alongside the circumstances of this case, we are of the view that the fact that the appellant herein, received the full purchase price for the property, allowed the 1st respondent to take possession, and for a period of at least fourteen years, let him remain on the property undisturbed, a constructive trust had been created. We agree with the English decision Yaxley v. Gotts and Another, (2000) Ch 162, where it was held that an oral agreement for sale of property, created an interest in the property even though void and unenforceable as a contract; but the oral agreement was still enforceable on the basis of a constructive trust or proprietary estoppel. This was also the approach taken in Macharia Mwangi Maina decision where the court observed that the appellant had put the respondent into possession of the suit property with the intention that he was to transfer the properties purchased to them and as such, a constructive trust had been created and the appellant could not renege.”
28.As to whether the lower court erred by determining that it had jurisdiction to hear and determine a claim based on adverse possession, the appellant submits as follows:-
“...from the foregoing court of appeal authority (referring to the decision in the case of Pauline Chemuge Sugawara and Nairuko ene Mutarakwa Kiruti & 3 others), it is manifestly clear that the magistrate court has no jurisdiction whatsoever to determine issues of adverse possession. It is apparent that the trial magistrate circumvented this issue by holding that it had jurisdiction to handle it...we submit that it is expected that an argument can be raised trying to justify the jurisdiction of the magistrates courts as conferred by the Magistrates Court Act 2015 and the gazettement of some Magistrates courts to handle land matters. On this issue we submit that the operative Act, for purposes of determining jurisdiction is the Limitation of Actions Act which provides under Section 9, 17, 37 & 38 provides the cause of action on adverse possession.
The action on adverse possession is not provided under the Environment and Land Act, 2011, the land registration act, 2012 or the Magistrates Court Act, 2015...It is manifestly clear that the learned trial magistrate fell into error by bestowing herself with jurisdiction on adverse possession by failing to adhere to the doctrine of stare decisis....
We therefore submit that the Magistrate’s Court is not seized with jurisdiction to hear and determine the issue of adverse possession hence the respondent counterclaim on adverse possession ought to have been struck out in the 1st instance. However, it became the cornerstone of the respondent’s successful suit on the counterclaim yet it is trite law jurisdiction is everything and without it a court must down its tools”.
29.In his submissions, the respondent concedes that Magistrate Courts do not have jurisdiction to hear and determine a claim for adverse possession but submits that before the issue was settled by the Court of Appeal, there were decisions of superior courts to the effect that Magistrate Courts had jurisdiction to hear and determine cases based on adverse possession.
30.Based on the decision of Appeal in the case of Sugawara V. Kiruti (Civil Appeal E141 of 2022)(2024) KECA, where it was determined that subordinate courts have no jurisdiction to hear and determine claims based adverse possession, I agree with the appellant’s submission that the trial magistrate erred by determining that it had jurisdiction to hear and determine the respondent’s counterclaim on adverse possession. Be that as it may, a review of the decision of the lower court shows that besides determining that the respondent had acquired interest in the suit property by virtue of having been in adverse possession thereof, she also determined that the appellant held the suit property in trust for the respondent on account of the oral transaction they had entered into.
31.Having determined that the transaction was one of sale as opposed to lease of land, as claimed by the appellant, on the strength of the decision in the case of William Kipsoi Sigei v. Kipkoech Arusei (supra), which decision I find to be applicable in the circumstances of this case as it relates to whether there existed a constructive trust in favour of the respondent on account of the oral sale agreement, I find and hold that the learned magistrate did not errer by determining that the appellant held the suit property in trust for the respondent.
32.The upshot of the foregoing is that the appellant has not made up a case for being granted the reliefs sought in the appeal. Consequently, I dismiss the appeal with half costs to the respondent since the appeal has partially succedeed.
33.Orders accordingly.
Dated, signed and delivered this 28th day of October, 2025.
Judgment delivered virtually in the presence of;-
-Mr. Chebii for Appellant.
-Mr. Alusa holding brief for Ms Cheloti for the respondent.
-CA: Ian/Christine.'