https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4897

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL CASE NO. E015 OF 2024** **JOSEPHAT MUSAU NZOMO:::::::::::::::::::::::::::::::::::::::::APPELLANT** **VERSUS** **MARGARET WANGECHI NGUTHI::::::::::::::::::::::::::::::RESPONDENT** **JUDGEMENT** The Appellant being dissatisfied with the whole judgment and Order of the Learned Magistrate in ELC Case No. 1 of 2018 appealed against the Judgment on grounds that; 1. The Learned Magistrate erred in Law and in fact in issuing an Order of Permanent injunction against the Appellant restraining him from entering, trespassing, constructing on or interfering with the Plaintiff's occupation of the Parcel of land Known as Plot No. 97 Old Mavoko Town within Mavoko Sub-county when the Plaintiff had not met the threshold of issuance of an injunction as provided by the law. 2. The Learned Magistrate to find that the Plaintiff had paid to the 1st Defendant the consideration for the Parcel of land despite the Plaintiff not tabling any evidence of the same. 3. The Learned Magistrate erred in Law and in fact in basing his findings on statements produced by the 1st Defendant and which statements had been withdrawn from the court record. 4. The Learned Magistrate erred in Law and in fact in completely disregarding all evidence that was tendered by the Appellant. 5. The Learned Magistrate decision is against the weight of the evidence adduced. The Appellant seeks the following orders; 1. That the Appeal herein be allowed and the Judgment of the sub-ordinate court be set aside. 2. That the costs of this Appeal be awarded to the Appellant. 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.”* The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the parties. The issues for determination are: 1. *Who is the lawful proprietor of the* *plot No. 97 Old Mavoko Town within Machakos Sub County?* 2. *What orders should this court issue?* In the trial court the Plaintiff/Respondent stated that o the 9th December 2004 her husband James Karanja now deceased entered into a sale agreement with Josephat Nzomo to purchase the suit land in which she was a witness (PEx4). The total purchase price was kshs. 220,000/= and her husband paid a deposit of kshs. 100,000/=. After one month her husband paid the balance of kshs. 120,000/=. The said was paid to Rhoda the sister in 2007. Later the seller wanted to sell an extra portion for kshs. 80,000/= but the sale never materialized. In 2005 the Plaintiff’s started constructing on the suit land but the Defendants destroyed and/or removed the construction materials saying there was a balance of kshs. 80,000/= to be paid. The Appellant DW1 Josephat Musau Nzomo testified and admitted that he entered into the said sale agreement with Deceased James Karanja. That he sold the land for kshs. 220,000/= and never received any money. That he does not know if Rhoda received any money. DW2, Robert Musya Nzomo testified that DW1 is his brother and he drafted the agreement. They never received any payment. Rhoda died in 2014 and he is not aware if she received any money. That in any event if the money was paid in 2007 then it was paid after the contract period. 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—* 1. *the contract upon which the suit is founded—* 2. *is in writing;* 3. *is signed by all the parties thereto; and* 4. *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; *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.* 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.”* I have perused the sale agreement adduced as evidence by the Plaintiff/Respondent. I find that is in writing and signed by the parties. The 1st to 5th Defendants are all siblings. It contains the names of the parties, the description of the property, the purchase price and conditions of payment. DW2 admits drafting the agreement and it states that the 1st Defendant received the first instalment Kshs. 100,000/= upon signing the agreement. This is confirmed by his statement filed on court on the 13th July 2018. PW1, testified that the final instalment was paid to Rhoda the 1st Defendant’s sister upon his instructions and he was in the house. I find that the Appellants are being untruthful when they said they had not received any money. I find that the Appellants have not proved that they did not receive any money for the said suit land. 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.''* 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.”* 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.* It is in evidence that the Deputy County Commissioner had summoned the Appellants to try and resolve that matter but they failed to appear and give their side of the story. 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 her 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 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**