https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4023

Maingi (Suing as the legal representative and administrator of the Estate of Maingi Mwilu) v Ndolo (Land Case Appeal E039 of 2023) [2026] KEELC 4023 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4023 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Case Appeal E039 of 2023 NA Matheka, J July 2, 2026 Between Benjamin Musyoki Maingi (Suing as the legal representative and administrator of the Estate of Maingi Mwilu) Appellant and Maundu Ndolo Respondent Judgment 1.The Appellant herein Benjamin Musyoki Maingi being dissatisfied with the judgment of the Honourable C.N. Ondieki- Principle Magistrate appeals against the whole of the said judgment and sets forth the following grounds of appeal;1.That the Learned Magistrate erred in law and fact by holding that the Respondent was not a trespasser to the suit property while the evidence showed clearly that he had entered the property without any colour of right.2.That the Learned Magistrate erred in law and fact by holding that the Respondent was a beneficial owner without any supporting evidence.3.That the Learned Magistrate erred in law and fact by finding that there was a sale between the Respondent and the registered owner while there was no iota of evidence to support that holding.4.That the Learned Magistrate erred in law and fact by holding that the Respondent had already been in possession of the said property while there was no such evidence.5.That the Learned Magistrate erred in law and fact by relying on the minutes of 26th March, 2021 to confer ownership to the Respondent.6.That the Learned Magistrate erred in law and fact by failing to check the veracity of the evidence of the respondent and introducing into his judgment matters not in evidence.7.That the Learned Magistrate erred in law and fact by deliberately overlooking the express provisions of the land control act and the law of contract act.8.That the Learned Magistrate erred in law and fact by awarding costs of the suit to the Respondent. 2.The Appellant seeks the following orders;a.That the appeal be allowed and the judgment of the lower court of 23rd November, 2023, be set aside.b.That the costs of this appeal be awarded to the Appellant. 3.We have considered the grounds of appeal as well as submissions by counsel and the authorities cited. Being a first appeal, it is our duty to analyze and re-assess the evidence on record and reach our own conclusions. In Selle vs Associated Motor Boat Co. (1968) EA 123, it was expressed thus: 4.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 allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif -v - Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 5.In the trial court the Plaintiff/Appellant stated that he is the administrator of the estate of Maingi Mwilu. That the suit land belongs to his father and that they have not done succession. That he has not seen any sale agreement between his family and the Respondent. That his father died in 1992 and the Respondent never claimed ownership until 2021. 6.The Respondent’s defence is that the property belongs to him. That he bought the property from PW1’s father in 1980 and paid the full purchase price of Kshs. 8,400/=. He stated that his copy of the sale agreement burnt after his house was razed down by a fire. 7.The Law of Contract Act clearly stipulates the requirements for a valid instrument to convey an interest in land. Section 3 (3) of the Law of Contract Act (Cap 23 of the Laws of Kenya) stipulates that;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; andb.the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:While Section 38 (1) of the Land Act states; 8.Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land—(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 to by a witness who was present when the contract was signed by such party. 9.In Harris JA in Garvey vs Richards (2011) JMCA 16 the court in considering the essential components of a contract reflected the following principles;It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable an essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement is in existence.” 10.Be that as it may, the Respondent produced a copy of minutes of a meeting of elders and the Plaintiff’s family held on the suit property and dated 26th March 2012 as DEx1. In the meeting both the Plaintiff’s mother and the Plaintiff’s elder brother confirmed they witnessed the 1980 transaction, affirmed the facts and signed the minutes. The Respondent stated that the money was used to pay the Plaintiff’s school fees. 11.I have perused the documents adduced as evidence by both parties. It is not in dispute that the land belongs to one Maingi Mwilu. The Defendant produced minutes of a meeting signed by members of the family of Maingi Mwilu who acknowledged the transaction. It is in evidence that the parties planted sisal as the boundary. I am persuaded that the Respondent entered into a sale agreement with the deceased during his life time and the same is valid and enforceable. No evidence has been adduced by the Appellant to prove otherwise. 12.Section 109 of the Evidence Act Cap 80 is clear 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 any law that the proof of that fact shall lie on any particular person.'' 13.The well-known mantra “he who asserts must prove.” Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows; 14.We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. 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 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.” 15.In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that;It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:Whosever 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. 16.Also, further, Section 108 of the Act states thus:The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 17.Again Section 109 of Act refers to the burden of proof of a particular fact. It states 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 any law that the proof of that fact shall lie on any particular person. 18.I find that the learned Honourable Trial Magistrate did not err in law and in fact in finding that the Plaintiff had failed to prove his case on a balance of probabilities. I find that this appeal is not merited and I dismiss it with costs.It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.N.A. MATHEKAJUDGE