Jesus Fellowship Church International & another v Asman (Land Case Appeal E034 of 2024) [2026] KEELC 3725 (KLR) (12 June 2026) (Judgment)

Jesus Fellowship Church International & another v Asman (Land Case Appeal E034 of 2024) [2026] KEELC 3725 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELC 3725 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Land Case Appeal E034 of 2024 JW Wanyonyi, J June 12, 2026 Between Jesus Fellowship Church International 1st Appellant Meressah Akoth Otieno 2nd Appellant and James Obwana Asman Respondent (Being an Appeal against the Judgment/Decree of Hon. Jacinter Orwa (CM) delivered on the 31st July 2024) Judgment 1.Before this Court is an appeal from the judgment of the Chief Magistrates Court at Homabay (Hon Jacinter Orwa.) dated 31st July, 2024 in CMCELC NO E001 of 2023. 2.A brief background of the matter is that the appellants filed a suit against the respondent by way of Plaint a dated 12th January , 2023 The appellants sought for orders ,interalia, that the Registrar of Lands , Homabay Land Registry to register mutation for 252 feet by 130 feet of Title No Kanyada/Kalanya/820 in favour of the 1st Plaintiff(1ST Appellant) , that an order do issue to the Registrar of Lands ,Homabay Land Registry to register the 1st Plaintiff as proprietor of 252 feet by 130 feet , costs and any other relief the court may deem fit to grant. 3.The appellants’ case as pleaded in the plaint is that the 1st Plaintiff is a registered religious Society while the 2nd Plaintiff is the presiding BISHOP and one of the Trustees, that the 1st Plaintiff is the legitimate proprietor of the suit property ; that sometimes in 2001 , the Late Bishop Lawi Otieno Nyateng entered into an agreement with the Defendant (Respondent) for purposes of purchasing the suit land ; that upon executing the agreement the Defendant was paid the full purchase price of Kshs 80,000/= and a further Kshs 10,000/= as facilitation fees for transfer , that the Late Bishop Lawi Otieno Nyateng subsequently donated the said parcel to the 1st Plaintiff for the purposes of erecting a church compound , that since September ,2001 the 1st Plaintiff has been and remained in possession and has constructed a church thereon. 4.The Appellants go on to state that despite calls to the Respondent to transfer he refused to comply and threated to repossess. That is the reason as to why the case was filed in court. 5.The respondent entered an appearance and filed a statement of Defence dated 20th April,2023 together with witness statement and list of Documents. 6.He averred that he is the registered proprietor after conducting successful succession proceedings, that the sale agreement he made with the late Lawi Otieno Nyateng was for purchase of a portion measuring 100 by 100 ft and that he cannot be restrained from enjoying his proprietary rights. 7.On 13th March ,2024 the case proceeded and PW1 Pastor James Yogo, PW2 Bishop Meresa Akoth and PW3 Sila Oyugi testified. The said witnesses are in agreement that the land in issue belonged to the Respondent, that an agreement was executed by the parties with the guidance of the Assistant Chief and that the full amount was paid. The Assistant Chief who testified as Pw3 confirms that he witnessed the agreement in the presence of a surveyor who actually surveyed the Land. He says the measurement is indicated in the agreement. 8.On his part the Respondent relied on his written statement and called one (1) witness, Samuel Ouma Odiembo. The gist of his case was that the portion of land was sold to Bishop Lawi Nyateng in2001 and that the same was registered in the name of Asman Obar Ojuok who died on 22ndApril,1995 as per letters of Administration issued on 19th September, 2014 in Homabay Succession Cause No 31 of 2021. 9.DW2 while admitting that there was indeed an agreement states that he witnessed payment of Kshs 10,000/= but despite the fact that never witnessed payment of Kshs 70,000/=. The Respondent confirmed to him receipt. 10.At the close of the hearing both Appellant and Respondent were given 14 days each to file and serve their respective submissions and Judgement was reserved for 31st July,2024 11.In the judgment of the trial court dated 31st July, 2024, the Trial Magistrate framed the issue for determination based on the submissions of both counsels on record noted that the appellant had given two contradictory versions of how he entered the suit land. She found that in the first instance, that there was no dispute regarding the sale agreement. 12.She indeed found that the conduct of the Respondent as per section 45 of the amounted to intermeddling with the estate of his deceased father which can attract criminal charges, and that any breach arising therefrom should be personally catered for by or visited on the Defendant, not the estate of his deceased father. 13.She went on to hold that the Late Bishop Lawi Nateng was duty bound to exercise due diligence pertaining to Land parcel Kanyada /Kalanya /820 prior to engaging the Respondent to sell a portion of land to him. 14.Relying on the case of Thrift Homes Limited Vs Kenya Investment Limited (2015) eKLR she held that transaction is tainted with illegality and is not enforceable legally. 15.On the Second issue for determination, she found as a fact that the 2nd Appellant was one of the board members of the 1ST Plaintiff representing the 1st Plaintiff as a board of Trustee. She then held that on the basis of absence of authority to act the 2nd Plaintiff acted beyond powers of the Board of Trustees hence the Appellants lacked capacity to institute proceedings 16.In view of the above and the material placed before the trial court, the learned Magistrate found that the appellants lacked capacity, and consequently dismissed their suit with costs to the respondent. 17.Aggrieved and dissatisfied with the said judgment the appellant preferred an appeal to this Court as evinced in the memo of appeal. In their memorandum of appeal dated 9th August, 2024, the appellants faulted the Learned Trial Magistrate on eight (8) grounds which I need not reiterate. 18.The appeal was admitted to hearing on 4th February ,2025 and Directions on hearing taken the same day 19.Both counsels expressed their wish to adopt and rely on their written submissions dated 20th November, 2025 and 25th January, 2026 respectively. 20.This being a first appeal, I have the onus to reconsider both matters of law and fact without losing sight that I did not have the advantage of seeing and hearing the witnesses. In John Teleyio Ole Sawoyo vs. David Omwenga Maobe [2013] eKLR the Court of Appeal held: - “This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyze the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same. 21.Still on the duty of the first appellate Court, Hancox JA (as he then was), stated in Ephantus Mwangi & another vs. Duncan Mwangi Wambugu [1982 -88] 1 KAR 278 at page 292, as follows:‘ A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.’” 22.I have carefully perused and considered the submissions of both counsels, the cases cited and the relevant law, as well as analyzed afresh the evidence that was adduced before the trial court while bearing in mind that I neither saw nor heard the witnesses and giving due allowance. I am indeed mindful of the fact that this court can only depart from the findings by the trial Court if they were not based on the evidence on record; where the said court is shown to have acted on wrong principles of law as held in Jabane vs. Olenja [1986] KLR 661; or if its discretion was exercised injudiciously as held in Mbogo & Another vs. Shah (1968) E.A. 23.The Appellants counsel in his Submissions has addressed the validity of the sale agreement , whether the appellants are entitled to specific performance ,that the doctrine of privity of contract is in favour of the Appellants’ that the Appellants have acquired proprietary rights through adverse possession , having been in occupation for 22 years , and that the court ought to have made an equitable consideration in favour of the Appellants. 24.The Respondent’s counsel likewise in submissions has addressed the issue of the validity of the appeal, validity and enforceability of the sale agreement and locus of the Appellants 25.Having considered the arguments of the counsel to the parties, the applicable law and the evidence, I find that the issue that falls for my determination is whether the Appeal and most particularly the record of Appeal is properly filed , whether a valid sale agreement was executed and if so if it is enforceable in law so as to grant specific performance and lastly, trial Magistrate fell into error in dismissing the Appellants suit with costs. 26.Regarding the validity of the Record of Appeal, I have perused the proceedings of 27th November ,2025 and I note that Mr. Mwamu sought leave of the court to extend time for filing the Record of Appeal and the court deemed the same as duly filed. This order of the court settled the issue and the court went ahead to grant a dated for hearing. 27.Indeed on 2/3/2026 both Counsels appeared, confirmed having filed their respective submissions and the court went ahead to fix a date for Judgment. 28.Raising this issue at this point in time is an exercise in futility as the train has already left the station. 29.The other issue which is crucial before delving into the remaining issue is whether the 1st Appellant was properly described and whether the 2nd Appellant was authorized to file suit. 30.I have perused the proceedings and noted that the matter came up for mention severally and both counsels never indicated to court that a preliminary issue on capacity was to be raised before proceeding with the hearing. 31.The witnesses then took the witness stand and were subjected to cross examination by Counsel for the respondent. 32.What can be gleaned from the record is that Counsel for the respondent ventured mainly on the sale agreement and never, at any given point raise any issue about capacity to sue. 33.Upon the Appellants closing their case the Respondent and his witnesses were heard and the case was fixed for filing of submissions by both parties. 34.Out of the blue Counsel for the Respondent submitted on the capacity of the Plaintiffs to institute proceedings and particularly authority of the 2nd Appellant to sue on behalf of the 1st Appellant. His argument was that one person can never constitute a trustee. 35.In addressing the issue in her Judgment, the Learned Trial Magistrate agreed with the said position and was guided by the case of Pius Matene D. Maina vs Director General Kenya Urban Roads Authority & 5 Others (2020) eKLR and Veronica Wanjiru MARINGA vs Ack Buxton Diocese of Taita Taveta & Another (2022) eKLR. 36.I have perused the two cases and have noted that the cases were decided summarily based on preliminary issues raised prior to the main trial. 37.It has been a practice in Kenya since the formulation of Order 11 of the Civil Procedure Rules ,2010 Its provisions are clear regarding the steps each party in a suit, claim or petition is required to take prior to the fixing a case for hearing. In the instant case, the Respondent did not raise objections during pre-trial conference under Order 11 of the Civil Procedure Rules as stipulated in Sections 1A and 3 respectively, to draw to the attention of the others his intention to raise objections to the capacity of the 1st and 2nd Appellants in the suit. 38.Order 11 of the Civil Procedure Rules has significance that goes to the root of justice. Pretrial directions in strict sense contains the packaged rules that enable the right to a fair hearing as ably captured in the decision of David Kimani Gitau v Francis Wainaina [2016] eKLR, wherein Prof Joel Ngugi J, (as he then was) propounded this position as follows:“pre-trial procedures, like all rules of procedures, are the handmaidens of justice and not its mistress. Hence, they are not formulaic or talismanic steps, which must be rigidly followed regardless of their utility to the trial process. Indeed, Order 11 of the Civil Procedure Code exists to ensure that the trial process is more efficient. Hence, a Court may, where circumstances and context permit or dictate skip, abbreviate or bespoke the pre-trial processes and procedures. The nature of this particular case indicates that this case might be a good candidate for that.” 3. I find that this a clear case of a party “waylaying” or ambushing the adverse party in court with an objection to capacity.Discovery as provided at the Civil Procedure Act Section 22 is key on production and inspection of documents by parties in a suit. The plaintiff kept mum all the way, failed to invoke the above legal provision and raise questions of admissibility of the 1st Defendants Documents, only to do so after the Plaintiffs case was heard. Orders for discovery and inspection of documents would have been readily availed to the plaintiff I had requested for the same at the pretrial stage of the proceedings.Undoubtedly, the purpose for discovery is the reduction of trial length, promoting fairness and preventing surprise at the hearing. Days are long gone when trials were by ambush, hiding documentary evidence from sight of the opposite party.Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy as if the rights and interests of the parties so far before it.For the foregoing upon careful consideration of the parties o the court is persuaded that the objection raised by the Plaintiff to the production of the documents as listed, and their probative value shall remain a matter within the domain of final Judgment. 39.The Court of Appeal in the case of Johnson Githaiga Nderitu & 4 Others Vs Nicholas Nderitu Maita & 3 Others at paragraph 11 made the following observation to the jurisprudence on the ingredients of a preliminary objection at page 5;‘’Article 159 (d) of the Constitution enjoins Courts to administer substantive justice and not to give undue consideration to technicalities and procedural justice. The rules of natural justice dictate that no person shall be condemned unheard. The appellants desire that the plaint be struck out by way of preliminary objection. This is against the grain and spirit of Article 159 (d) of the Constitution and the basic tenets of the rules of natural justice which require all parties must be heard – audi alterem partem. Further, Courts are mandated not to give undue regard to technicalities through the overriding objectives as enshrined in Sections 3A and 3B of the Appellate Jurisdiction Act and as stated in Douglas Mbugua Mungai –vs- Harrison Munyi, - Civil Application No. Nai. 167 of 2010: -We are as a matter of statute law required to take a broad view of justice and take into account allow the necessary circumstances, factors, and principles and be satisfied at the end of the exercise that we have acted justly. “As was stated in Stephen Boro Gitiha – vs – Family Finance Building Society & 3 Others, Civil application No. Nai. 263 of 2009.The overriding objective overshadows all technicalities, precedents, rules and actions ….and whatever is in conflict with it must give way.”In DT Dobie & Co. (Kenya) Ltd. –vs- Muchina, Civil Appeal 37 of 1978, this Court expressed itself as follows: -“The court ought to act very cautiously and carefully and consider al facts of the case without embarking upon a trial thereof before dismissing a case……”We adopt the dicta in the D.T. Dobie case and the overriding objective governing the exercise of jurisdiction by the Court: we note that the critical facts in this case are disputed and for these reasons, this appeal has no merit and is hereby dismissed with costs. 40.It is my finding that the Objection on capacity was not properly raised and it amounted to an ambush for the reason that the Counsel for the respondent raised the issue at the tail end of the proceedings. It ought to have given notice and raised the issue as the Preliminary Objection. 41.In view of the above authorities and the holdings, I find that the issue on Capacity was misplaced. 42.I also find that the 2nd appellant filed the suit in her capacity as the administrator of the estate of the late Bishop Lawi Otieno Nyateng who had purchased the said property from the respondent. 43.Under the Trustees (perpetual succession) Act Cap 164, the interpretation section, defines a trustee as a sole trustee and therefore, the 2nd appellant being a trustee was properly before the court on behalf of the 1st appellant. 44.I now move to address the 2nd issue which is whether a valid sale agreement was executed, and if so, is it enforceable in law so as to grant specific performance. 45.It is not in dispute that the Respondent and the Deceased entered into a land sale agreement for the suit property dated 15th June,2001. This fact was admitted by the Defendant who stated that he entered into a sale agreement and pointed out the land to Bishop LawiThe Defendant also admitted that received the sum Kshs. 80,000/= and later 15000/= which for succession. He admits that the church is in occupation for 20 years. 46.Section 3(3) of the Law of Contract Act, Cap 23 establishes the legal requirements for a valid agreement where the disposition of an interest in land is concerned. It provides that such a contract must be in writing, signed by all involved parties, and attested by a witness present at the time of signing. 47.The provision expressly states as follows:“3(3)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; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.” 48.Section 3(3) of the Law of Contract Act, came into force in June 2003, the same does not apply to agreements entered into before the commencement. Section 3(7) provides as follows:“The provisions of subsection (3) shall not apply to any agreement or contract made or entered into before the commencement of that subsection.” 49.There is no doubt that the agreement met the threshold for a valid agreement, as it was in writing, signed by the parties and attested by witnesses. This agreement was entered into in 2001, before the commencement of Section 3 (3) of the Contract Act, therefore, even if it was done orally, and the parties had performed or were willing to perform their part of the contract, the same would not have been defeated by lack of being reduced into writing. 50.It is on record that the Deceased Bishop and the Defendant entered into a sale agreement of the suit land, paid the full purchase price, took possession and is still in possession through the church. 51.Though the Defendant has in his defence denied receiving the full sum it is clear from the sale agreement that the sum payable was Kshs 80,000/= and they said was settled in three (3) instalments of Kshs10,000/=, Kshs 62,000/= and Kshs 8,000/= respectively. 52.In his defence the Respondent has pleaded at paragraph 4 that he entered into a sale agreement with the Late Lawi Otieno Nyateng for purchasing a portion measuring 100 by 100 Ft which was never finalized. He further states that he was yet to begin the succession process. 53.In his written witness statement, he says he entered into an informalagreement where he was paid but the transaction was stopped by family members who denied his capacity to sell the land. He concludes by saying that he never signed the agreement but he is willing to surrender a portion measuring 100 by 100 ft so as the Appellant pays the current market value. 54.I however note that Defendant did not raise any issue of coercion and his only issue is succession and the size of the land. 55.This issue was clearly addressed by the Learned Trial Magistrate but by virtue of venturing into section 45 of the law of succession she arrived at erroneous decision to the effect that the transaction was tainted with illegality. 56.The court finds that the Defendant entered into the sale agreement willingly, without duress and therefore the same was valid and enforceable. 57.Having found that the sale agreement dated 10th April 2002, between the Deceased and the Defendant was valid, entered into voluntarily, met the threshold of a land sale agreement, the Deceased having paid the full purchase price and given possession by the Deceased, and does not suffer from any defects, is the 2nd Appellant entitled to the reliefs sought? 58.The Respondent cannot have his cake and eat it. He cannot be allowed to keep the deceased’s money and the land. 59.The court is cognizant of Section 6 (1) of the Land Control Act Cap 302 Laws of Kenya, which provides that transactions on agricultural land without the consent of the Land Control Board are null and void. 60.However, courts have applied equitable principles to protect a purchaser who has paid for land but lacked consent, to prevent sellers from using legal technicalities to retain both the money and the land as in the case of Willy Kimutai Kitilit v Michael Kibet [2018] KECA573 (KLR), where the court held;“It was not in dispute that the appellant sold a 2acre 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 installment 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 fled a suit for 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 circumstance of the case as we have held in essence that, the lack of the consent of the 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" 61.The lack of a Land Control Board consent does not preclude the court from giving effect to equitable principles and in this case a constructive trust where the Plaintiff has fulfilled his part of the contract. The Defendant cannot be allowed to keep the money and the land and allege lack of Land Control Board Consent. 62.This leads me to the issue whether the Appellant are entitled to an order of specific performance. 63.In the case of Reliable Electrical Engineers Ltd. V Mantrac Kenya Limited (2006) eKLR, the court stated that:“Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well settled principles” 64.The issue of specific performance was discussed in In Gharib Suleman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998 where the Court held that:“The jurisdiction to order specific performance is based on the existence of a valid and enforceable contract and being an equitable relief, such relief is more often than not granted where the party seeking it cannot obtain sufficient remedy by an award of damages the focus being whether or not specific performance will do more perfect and complete justice than an award of damages.” 65.In Thrift Homes Ltd v Kenya Investment Ltd 2015 eKLR, the court stated that:“Specific performance like any other equitable remedy is discretionary and will be granted on well settled principles. The jurisdiction of specific performance is based on the existence of a valid enforceable contract and will not be ordered if the contract suffers from some defects or mistake or illegality. Even where a contract is valid and enforceable, specific performance will not be ordered where there is an adequate alternative remedy. The court then posed the question as to whether the Plaintiff who was seeking specific performance in that case had shown that he was ready and able to complete the transaction". 66.The underlying principle in granting the equitable relief of specific performance is that, “the Plaintiff or Defendant must show that he has performed all the terms of the contract which he has undertaken to perform, whether expressly or by implication, and which he ought to have performed at the date of the writ in the action.” 67.I have considered the documentary evidence tendered in court alongside the witness statements and testimony and it is evident that the Deceased had completed her part of the contract. 68.Therefore, having established that the Deceased was ready and willing to complete the transaction, I find that the prayer for specific performance is merited. 69.From the evidence on record and the testimonies in court, I find that the Appellants proved their case on a balance of probabilities that the Respondent was in breach of the contract dated 15th June ,2001 and has refused to affect a transfer despite obtaining letter of Administration. 70.I also find that he holds the land in dispute in trust for the Estate of the late bishop Lawi Otieno Nyateng. 71.Though it is said that the late Bishop had donated the same to the church there is no evidence in that regard. 72.Though the capacity of the 1st Appellant is doubted in terms of legal capacity the saving grace is that the 2nd Appellant has instituted the suit in her own right as Administrator of the Deceased ‘s Estate to whom the estate devolves. 73.I therefore find that the Appeal is merited, I set aside the order of the Learned Trial Magistrate dismissing the plaintiff’s suit with costs. 74.In the circumstances, I find it appropriate to make the following final ordersi.The appeal is hereby allowedii.Judgment of the lower court dismissing the Suit be and is hereby set asideiii.The 2nd Appellant shall have costs of the suit both in the lower court and this Appealiv.A permanent injunction restraining the Respondent either by himself, agents, servants, employees, and any other person acting under his instructions from annexing, excising portion of trespassing onto, entering, building on, cultivating, alienating, interfering and or erecting structures on part of Kanyada/Kalanya /820 measuring approximately 252 by 130 feet or thereaboutsv.That the Registrar of Lands, Homabay Land Registry to register mutation for 252 feet by 130 feet of Title No Kanyada/Kalanya/820 in favour of the Meresah Akoth Otieno in her capacity as the Administrator of the estate of Lawi Otieno Nyatengvi.that an order does issue to the Registrar of Lands, Homabay Land Registry to register mutation of 252 feet by 130 feet in the favour of Meresah Akoth Otieno in her capacity as Administrator the Estate of Lawi Otieno Nyatengvii.The Respondent is hereby ordered to release and hand over the original title in respect of Land Kanyada/Kalanya /820 to the Land Registrar, Homabay within thirty (30) days for purposes of effecting the transferviii.In default of compliance the Deputy Registrar of this Court shall execute all relevant documents for and on behalf of the Respondent 75.It is so ordered DATED, SIGNED AND DELIVERED AT HOMABAY ELC COURT VIRTUALLYTHIS 12TH DAY OF JUNE 2026In The Presence Of;Ms. Achieng for Respondent- Present.Mr. Odhiambo holding brief for Mwamu for the Appellant-Present.James Obwana Asman-PresentCourt Assistant, Ms. Awino – Present.JUSTICE, JOHN WALTER WANYONYI