https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3934

Musyoka v Nzomo & another (Suing as the legal representative of the Estate of James Makau Nzono - Deceased) (Environment and Land Appeal E020 of 2024) [2026] KEELC 3934 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEELC 3934 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal E020 of 2024 NA Matheka, J June 23, 2026 Between Damian Musyoka Appellant and Martin Mutuku Nzomo & Marie Mbatha Nzomo (Suing as the legal representative of the Estate of James Makau Nzono - Deceased) Respondent Judgment 1.The Appellant herein, Damian Musyoka, being aggrieved and dissatisfied with the judgement and decree of the Hon B. Ojoo, Chief Magistrate in Mavoko MCELC No. 16 of 2018 - Martin Mutuku Nzomo & Another vs Damian Musyoka delivered on the 25th of April 2024, appeals to this Court against the whole of the findings and the judgment on the following grounds;1.That the Judgement of the Learned Lower Court is violative of the principles of justice, equity and good conscience.2.That the Learned Lower Court erred in law and fact in failing to consider the evidence on record in a judicious manner.3.That the Learned Lower Court erred in law and fact by misdirecting itself on the substratum the Appellant's Defence.4.That the Learned Lower Court failed to recognize that the Respondent was the architect of the actions by the Appellant and wrongfully imputing wrong doing on the part of the Appellant.5.That the Learned Lower Court erred in law and fact by diluting the conduct of and impact of the Respondent's accusations against the Appellant and deliberately ignoring their negativity as impacted on the Appellant.6.That the Learned Lower Court erred in law and fact by failing to recognize the fact of the refund by the Appellant of the full purchase price to the Respondents.7.That the Learned Lower Court erred in law and fact by misdirecting itself on erroneous assumptions on occupation of land and awarding the Respondent excessive general damages that were not prayed for.8.That the Learned Lower Court erred in law and fact in failing to consider the Appellant's defence, statement, evidence and submissions, thus making adverse findings and entering judgement against the Appellant.9.That the Learned Lower Court further erred in law in failing to appreciate and/or consider the point of law and raised by the Appellant as to the competency of the suit. 2.The Appellant prays for the following Orders;a.That the Honourable Court does allow this Appeal.b.That the Judgement of the Hon. B. Ojoo dated 25th April 2024 in MCELC NO. 16 OF 2018 (Mavoko) Martin Mutuku Nzomo & Anor vs Damian Musyoka be set aside and be substituted thereof with an Order dismissing the Respondent's suit.c.That the Appellant be awarded with costs of the Appeal.d.Such other and further Orders as the Honourable Court may deem fit to grant. 3.This court has considered the evidence and the submissions therein. This is the first appeal, the primary role of the court is to re-evaluate, re-assess and re-analyze the evidence on record and decide as to whether the conclusion reached by the learned magistrate was sound, and give reasons either way. This duty was emphasized by the Court of Appeal in Mbogo and another vs Shah (1968) EA 93 where it was held that;I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matter on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is for the company to satisfy this court that the judge was wrong and this, in my view it has failed to do.” 4.In the trial court the Plaintiff/Respondent stated that on or about 5th March 2015 his son James Makau Nzomo entered into a sale agreement with the Defendant for the purchase of one acre of land referred to as plot number 3 to be exised from Land Parcel No. Mavoko Twon Block 3/3155 situate in Machakos County. He paid the full purchase price and was given possession whereby he fenced the same using barbed wire. That despite paying the full purchase price the Defendant has failed and/or refused to transfer the same to him. 5.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: 6.While Section 38 (1) of the Land Act states;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. 7.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.” 8.The 1st Respondent produced the sale agreement dated 5th March 2015 his son James Makau Nzomo entered into a sale agreement with the Defendant for the purchase of one acre of land referred to as plot number 3 to be excised from Land Parcel No. Mavoko Town Block 3/3155 situate in Machakos County (PEx1). It indicated the James Makau Nzomo as the buyer and Appellant as the seller and is signed by the Appellant Damian Musyoka and James Makau Nzomo and witnessed by Fred Mutua Advocate. The produced copies of RTGS and two Banker’s cheques as proof of payment (PEx2). 9.I have perused the documents adduced as evidence by both parties. It is not in dispute that the Appellant entered into the said agreement. The Appellant DW1 testified that after differences between him and the late James Makau Nzomo the latter accusing him of being fraudulent, he decided to rescind the agreement and refunded the entire purchase price. By depositing the same into James Makau’s bank account. 10.I find that the Appellant entered into the sale agreement willingly and the same is valid and enforceable. No evidence has been adduced by the Appellant to prove otherwise. 11.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.'' 12.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;"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.” 13.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.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.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. 14.The Respondent pleaded for damages for loss of user and it is not disputed that despite paying the full purchase price he was unable to utilize the land due to the Appellant’s inaction and although the Appellant denies destroying the fence he admits resuming ownership of the same after he refunded the purchase price during the pendency of this suit. Specific performance is an equitable remedy where a court orders a party to perform their contractual obligations instead of merely paying damages for breach. The Respondents fulfilled their part of the contract and I find that the Respondents’ are entitled to specific performance as well as damages. I find that the learned Honourable Trial Magistrate did not err in law and in fact in finding that the Plaintiffs had proved their 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 23RD DAY OF JUNE 2026.N.A. MATHEKAJUDGE