Kihara v Kabungo (Civil Suit 28 of 2013) [2026] KEHC 10740 (KLR) (14 May 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL SUIT NO. 28 OF 2013** **DANSON MURIUKI KIHARA………………............................PLAINTIFF/RESPONDENT** **VERSUS** **JOHNSON KABUNGO.................................................................DEFENDANT/APPLICANT** **RULING** 1. By a Notice of Motion dated 15/10/2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Sections 5 and 19 of the Stamp Duty Act and all other enabling powers thereunder, the Applicant seeks that: 1. *The Agreement dated 9th November 2004 and sought to be produced by the Plaintiff as evidence in this suit be struck out and/or excluded from evidence on the grounds that it is unstamped and inadmissible under the provisions of the Stamp Duty Act.* 2. *Costs of this application be in the cause.* 2. The application is predicated on the grounds on the face of it and supporting affidavit sworn by Johnson Kabungo, the Applicant herein on even date. He avers that this suit was instituted by the Respondent to enforce the Agreement dated 9/11/2004. The said agreement constitutes an equitable charge over immovable property known as Land Title No. MUTIRA/KIAGA/1308, which he surrendered to the Respondent as security for the loan advanced, and is therefore an instrument chargeable with *ad valorem* stamp duty under Paragraph 24 (1) of the First Schedule to the Stamp Duty Act. Pursuant to Section 19 (1) of the Stamp Duty Act, no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever, except in criminal proceedings and in civil proceedings by a collector to recover stamp duty, unless it is duly stamped. In the absence of proper stamping, the agreement contravenes the mandatory provisions of the Stamp Duty Act and cannot be admitted as evidence in this suit. 3. The Respondent did not file any replying affidavit to the application. ***Submissions*** 1. The Applicant urges that the agreement is unequivocally an instrument within the ambit of the Stamp Duty Act and was required to be stamped within 30 days of execution under Section 6 (1) thereof, and cites ***Triton Co. Ltd v in the Matter of Companies Act [2009] KEHC 2190 (KLR), Rubo Kipngetich Arap Cheruiyot v Peter Kiprop Rotich [2013] eKLR and Shah v Dhiman [2019] eKLR***. He urges that the agreement in its present unstamped state would gravely prejudice his right to a fair trial under Article 50 of the Constitution and contravene the overriding objective enshrined in Sections 1A and 1B of the Civil Procedure Act. He prays for the agreement to be struck out and/or excluded from evidence in this suit. 2. The Respondent urges that no legal charge was created over the title of land parcel number Mutira/Kiaga/1308, and pray for the dismissal of the application. He urges that the purpose of Stamp Duty Act is to ensure collection of revenue and not necessarily to deprive the party of a cause of action, as illustrated in ***Abok James Odera T/A A.L Odera &Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR and Mwanahamisi Omar Mzee also known as Fatuma Mohamed Ali Omar v Chengo Kahindi Birya & Another (2018) eKLR***. **Analysis and Determination** 1. After due consideration of the application and submissions on record, the issue for determination is whether the orders sought therein should issue. 2. Section 19 (1) of the Stamp Duty Act provides that; ***“No instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever, except in criminal proceedings and in civil proceedings by a collector to recover stamp duty, unless it is duly stamped.”*** 3. That defect is nonetheless curable under Section 19 (3) of the Stamp Duty Act which provides that: ***“Upon the production to any court (other than a criminal court), arbitrator, referee, company or other corporation, or to any officer or servant of any public body, of any instrument which is chargeable with stamp duty and which is not duly stamped, the court, arbitrator, referee, company or other corporation, or officer or servant, shall take notice of the omission or insufficiency of the stamp on the instrument and thereupon take action in accordance with the following provisions — (a) if the period of time within or before which the instrument should have been stamped has expired and the instrument is one in respect of which a person is specified in the Schedule to this Act as being liable for the stamping thereof, the instrument shall be impounded and, unless the instrument has been produced to a collector, shall forthwith be forwarded to a collector;(b) in any such case, before the exclusion or rejection of the instrument, the person tendering it shall, if he desires, be given a reasonable opportunity of applying to a collector for leave under***[***section 20***](https://new.kenyalaw.org/akn/ke/act/1958/31/eng%402025-07-01#att_1__chp_480__part_II__sec_20)***or of obtaining a certificate under***[***section 21***](https://new.kenyalaw.org/akn/ke/act/1958/31/eng%402025-07-01#att_1__chp_480__part_II__sec_21)***;(c) in all other cases, unless otherwise expressly provided in this Act, the instrument shall, saving all just exceptions on other grounds, be received in evidence upon payment to the court, arbitrator or referee of the amount of the unpaid duty and of the penalty specified in subsection***[***(5)***](https://new.kenyalaw.org/akn/ke/act/1958/31/eng%402025-07-01#part_II__sec_19__subsec_5)***, and the duty and penalty, if any, shall forthwith be remitted to a collector with the instrument to be stamped after the instrument has been admitted in evidence.”*** 1. In ***Abok James Odera T/A A.L Odera &Associates v John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR*** cited by the Respondent, the Court of Appeal expounded the provisions of sections 19 and 21 of the Stamp Duty Act as follows; ***“We are in agreement that the agreement of 4th March, 1996 though subject to the***[***stamp duty Act***](https://new.kenyalaw.org/akn/ke/act/1958/31)***(Supra) and that duty is payable on it, it does not fully comply with the above cited provision, but such non compliance is not however fatal to the enforcement of the said agreement. Our reasons for finding so are that indeed the agreement only had adhesive stamps and not stamp duty stamps. This condition notwithstanding the court is enjoined under section 19 (3) (a) (b) and (c) not to reject such an agreement in totality, but to receive it and either assess the stamp duty itself and direct that it be paid. Or alternatively the court can impound such an agreement and direct that it be delivered to the stamp duty collector for him to assess the stamp duty payable and demand its payment. There is also provision for payment or waiver of payment of penalties on late payment of duty as the stamp duty collector may direct at his discretion. The stamp duty collector also has a discretion to extend time within which the stamp duty assessed should be paid where he is satisfied that the omission or neglect to pay stamp duty was not from the intention to evade payment of stamp duty or otherwise to defraud the Authority concerned. The stamp duty collector also has a discretion to charge additional stamp duty on top of what may have been assessed as the stamp duty payable on the such an agreement. There is also a safety valve vide which the defaulter has a right of appeal to the relevant minister against the collection directive on the payment of the stamp duty assessed, additional stamp duty assessed or penalties imposed.”*** 1. This court rendered its judgment on 8/12/2017 in favour of the Plaintiff/Respondent and the instant application is a back door attempt to have a second bite at the cherry, which is untenable and unconscionable. **ORDERS** 1. Accordingly, for reasons set out above, the Court finds that the application dated 15/10/2025 is without merit and it is dismissed. 2. There shall be no orders as to costs in this succession dispute. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kagio for Plaintiff. Mr. Njoroge for Mr. Gathuku for the Defendant.