Background of the appeal
1.The proceedings leading to this appeal were commenced by the appellant herein against the respondents herein through a plaint filed in court on March 22, 2013, and which was amended on April 18, 2013 and further amended on March 2, 2015 in the Chief Magistrate’s Court at Meru civil suit No 341 of 2014. I note however, that the further amended plaint does not form part of the record of appeal. The reliefs sought by the appellant were a declaration that transfer of whole Land Parcel No Nyaki/Kithoka/1726 was fraudulent, an order that the appellant is entitled to 2 acres and rectification of the register, an adjustment of boundaries for LR NO Nyaki/Kithoka/1823 to read measuring 0.89 acres instead of 1.32 acres on the ground and LR Nyaki/Kithoka/1726, an order of mandatory permanent injunction restraining the 3rd respondent from entering, trespassing into a portion measuring 2 acres or interfering with the quiet possession by the appellant of the 2 acres and costs of the suit.
2.According to the further amended plaint, the appellant pleaded that the late Jeremiah M’Igweta M’Ingetu was the registered owner of original land parcel No Nyaki/Kithoka/345 measuring 10 acres and in 1992, the deceased subdivided the said land into three parcel No 1724, 1725 and 1726. That land parcel No Nyaki/Kithoka/1724 was subdivided into two portions Nyaki/Kithoka/1822 (which was further subdivided into Nyaki/Kithoka/ 4248 and 4249) and LR No Nyaki/Kithoka/1823.
3.It was pleaded that the appellant sold to the 1st respondent a portion measuring 0.396 Ha (0.98) acres out of land parcel No Nyaki/Kithoka/1823, but that on the ground the respondent took a bigger portion than what was sold to him thus affecting the subdivisions of LR No 1822 (now 4248 and 4249). That the deceased had also sold a portion measuring 3 acres out of land parcel no Nyaki/Kithoka/1726 to the 1st respondent’s late father Eutychus Muthui (deceased) while the appellant and his family settled on the remaining 2 acres which he enormously developed. The appellant averred that his homestead is spread over LR NO Nyaki/Kithoka/1725 and 1823. The appellant contended that the respondents illegally annexed the 2 acres of LR NO Nyaki/Kithoka/1726.
4.The 1st and 2nd respondents filed a defence dated April 8, 2015 in which they admitted purchasing LR No Nyaki/Kithoka/1823 from the appellant and they took possession of the same. They deny taking more acreage than what sold to them. They also deny that they owe the appellant 2 acres or any land out of LR NO Nyaki/Kithoka/1726.
5.The 3rd respondent filed a defence dated April 29, 2015 denying the appellant’s claim.
6.The appellant testified and called one witness and closed his case while the respondents called two witnesses and closed their case.
7.In his judgment, the learned trial magistrate who heard the case found that the appellant had failed to prove his case against the respondents on a balance of probabilities and dismissed the suit with costs to the respondents.
8.Being dissatisfied with the judgment, the appellant lodged this appeal. In the memorandum of appeal dated February 25, 2021, the appellant raised the following grounds-:1.That the learned magistrate failed in law and in fact in using a handwritten agreement without having the author of the said agreement and without having the signatures having been subject to document examiners for verification.2.That the learned magistrate erred in law and fact by considering a handwritten sale of land which did not meet the provisions of Section 3 of the Law of Contract Act, Chapter 23 Laws of Kenya as far as sale of land agreement are concerned.3.That the learned magistrate failed to consider or sufficiently consider the lengthy submissions and judicial authorities filed by the appellant.4.That the learned magistrate erred in law and fact in that he misconstrued and misinterpreted the provisions of the Civil Procedure Act and as a result came to the wrong conclusion.5.The learned magistrate erred and misdirected himself in law and fact by framing and determining the wrong, irrelevant, extraneous and or inappropriate issues of law contained in the said judgment and or by not addressing the correct and all relevant issues arising from the parties’ evidence/claims.6.That the learned magistrate erred and misdirected herself in law and fact by assuming and concluding that the correct sale of land agreement was the one filed by the respondent despite the appellant having filed a sale agreement that was executed by an advocate and further making a conclusion without the experts report on the authenticity of the signatures.7.That the learned magistrate erred in law and fact by ignoring and/or refusing to consider the proper evidence on record and or took into consideration irrelevant and or extraneous matters and or matters not in issue/dispute and or ignored was biased in evaluating evidence on record thereby resulting to the detriment of the appellant.8.That the learned magistrate failed in law and in fact by taking into account that the appellant had a proper agreement drawn by an advocate and attested to by witnesses and putting into consideration a hand written agreement produced by the respondents.9.That the learned magistrate failed in law and in fact by considering ambiguous scene visit report presented by the District Land surveyor which did not clearly identify the parcel of land occupied by each party and the measurements of the each piece of land.10.That the learned magistrate erred in law and fact by directing herself to the wrong issues and or by not addressing correct and relevant issues arising from the parties pleadings/claims11.That the learned magistrate failed to find that the whole defence was/is a sham, unmeritorious, vexatious, embarrassing, and frivolous and an abuse of the court process12.That the learned magistrate erred in law and in fact by failing to find that the appellant had proven his case on a balance of probabilities.13.That the learned magistrate erred and misdirected herself in law and fact by applying the wrong test and principles of contract in determining whether or not the respondent’s sale of land agreement was valid.14.That the learned magistrate erred in law and fact by failing to appreciate the correct factual and legal import of acknowledgement receipt presented by the appellant in the trial court.
9.The appellant prays for the appeal to be allowed and the decision made by the subordinate court on January 27, 2021 to be set aside and an order for retrial with costs of this appeal and in the lower court to be borne by the respondents.
10.Pursuant to directions given by the court, parties filed written submissions through their respective advocates on record.
Analysis And Determination
20.I have perused and considered the record of appeal, the grounds of appeal and the submissions made. This being a first appeal, I am conscious of the court’s duty and obligation to evaluate, re-assess and re-analyze the evidence on record to determine whether the conclusion reached by the learned trial magistrate were justified on the basis of the evidence presented and the law.
21.In this case, the appellant’s claim as pleaded in the further amended plaint was that his late father, Jeremiah M’Igweta M’Ing’etu (deceased) was the registered owner of original land parcel No Nyaki/Kithoka/345 measuring approximately 10 acres before the same was subdivided into three portions known as Land parcel Nos Nyaki/Kithoka/1724, 1725 and 1726. That subsequently, the deceased subdivided parcel No 1724 into two portions, to wit, Nyaki/Kithoka/1822 and 1823. That land parcel No Nyaki/Kithoka/1822 was further subdivided into Nyaki/Kithoka/4248 and 4249. The appellant alleged that the deceased sold a portion measuring 0.98 acres out of land parcel No Nyaki/Kithoka/1823 to the 1st respondent, but on the ground the 1st respondent took a bigger portion. That the deceased also sold a portion measuring 3 acres out of land Parcel No Nyaki/Kithoka/1726 to the 1st respondent’s late father Eutychus Muthui (deceased) who instead fraudulently and irregularly transferred the whole parcel into his name.
22.In the further amended plaint, the appellant gave particulars of fraud as follows-:(a)Transferring whole parcel No 1726 instead of 3 acres,(b)Forging the signatures of the late Jeremiah M’Igweta M’ingetu,(c)Transferring whole land without the knowledge of the deceased Jeremiah M’Igweta M’Ing’etu,(d)Transferring whole land without following the laid down procedures in law,(e)Transferring LR NO Nyaki/Kithoka/18323 to himself a portion measuring 1.32 acres instead of 0.89 acres with the result that LR NO Nyaki/Kithoka/1823 is bigger on the ground and mutation form.
23.There are only three issues for my consideration-;i.Whether there was any evidence of fraud proved against the respondents.ii.Whether the sale of land agreement produced by the respondents did not meet the provisions of Section 3 of the Law of Contract Act.iii.Whether the decision of the learned trial magistrate was against the weight of the evidence and the law.Whether there was any evidence of fraud proved against the respondents.
24.In this case, it is not in dispute that the appellant’s late father, Jeremiah M’Igweta M’Ing’etu (deceased) was the owner of the original parcel of land LR NO Nyaki/Kithoka/345. Before he passed on, the deceased subdivided his land into various portions, among them land parcel No Nyaki/Kithoka/1726 and Nyaki/Kithoka/ 1823. The appellant’s case is that before his demise the deceased sold a portion measuring 3 acres that was to be excised from Nyaki/Kithoka/1726 to the 1st respondent’s deceased father, the late Eutcychus Muthui (deceased). That however, the whole parcel of land was transferred instead of the 3 acres that was allegedly sold.
25.In the case of RG Patel Vs Lalji Makanji (1957) EA 314, it was held that:
26.In this case, appellant admits that there was a sale in writing of the suit parcels of land. Whereas the appellant alleged that the 1st respondent took a bigger portion of land than that which was sold to him, the evidence on record indicates that the Land Registrar Meru Central and the District Surveyor Meru Central visited the suit lands and found that each party was in occupation of their respective parcel of land.
27.Further, although the appellant alleged that his deceased father only sold 3 acres out of land parcel No Nyaki/Kithoka/1726 to the 1st respondent’s father and not the entire 5 acres, I note that in his witness statement which was filed on March 25, 2013 and which the appellant adopted as his evidence in chief, he admits that the sale was in writing and the respondents had a copy of the agreement. Indeed the respondents produced a handwritten sale agreement showing that the two deceased persons entered into an agreement for the sale of the whole parcel No Nyaki/Kithoka/1726 on April 4, 1992. It is questionable therefore how the appellant was able to secure a typed sale agreement dated September 10, 1990 when the same did not form part of his original bundle of documents, and when he had expressly acknowledged that it was the respondents who were the ones in possession of the sale agreement over the said land.
28.The appellant submitted the sale agreement relied on by the trial magistrate that was produced by the respondents was a forgery.
30.In the same case, the Court of Appeal stated as follows-;
31.In the case of Ndolo Vs Ndolo (2008) 1 KLR 742, the Court stated-;
34.Being guided by the above decisions of the Court of Appeal, which are binding on this court, I find that the burden in this case lies on the appellant who alleges that the respondents’ sale agreement was a forgery. The appellant did not tender any evidence to support the fraud pleaded and also did not even deem it fit to call any expert witness to support his allegations. Relying on the material on record, in my view the trial magistrate was justified in believing the respondents’ and not the appellant. Therefore, I see no reason to fault the finding of the learned magistrate with regard to the sale agreements in question. I find that there was no fraud proved against the respondents.Whether the sale agreement produced by the respondents did not meet the provisions of Section 3 of the Law of Contract Act.
35.The appellant submitted that the agreement that was produced by the respondents did not satisfy the requirements of Section 3 (3) of the Law of Contract Act. Section 3 (3) of the Law of Contract Act provides as follows:
36.I note that the sale agreement that was produced by the respondents and which the trial court relied on in its judgment was in writing. I do agree with the respondents’ submission that whether the agreement was handwritten and/or typed had no bearing upon the legitimacy of the sale transaction. The words used in Section 3(3) of the Law of Contract Act is in writing. The appellant’s argument that the sale agreement is not valid simply because it is handwritten therefore has no basis. I find that the agreement met the requirements of Section 3(3) of the Law of Contract Act.Whether the decision of the learned magistrate was against the weight of the evidence and the law.
37.The prayer sought by the appellant were grounded on the allegation of fraud. It is trite law that the registration of a person as proprietor of any land can be cancelled on the basis of fraud. In this case, it was not enough for the appellant to have pleaded fraud. He ought to have tendered evidence that prove the particulars of fraud to the satisfaction of the trial court. In this case, I am not persuaded that the appellant tendered sufficient evidence to prove the alleged fraud on the part of the respondents. I hold that the learned magistrate did not err in finding that the appellant failed to prove his case against the respondents on a balance of probabilities.
38.In totality, my evaluation of the evidence and applicable law to the facts of this case shows that the appellant did not prove fraud on the part of the respondents and his case was rightly dismissed by the trial court.
39.In the result, the appeal herein has no merit and is dismissed with costs.