https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3183

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E002 OF 2022** **ROSEMARY MOKI Alias ROSEMARY WAUSI MOKI......APPELLANT** **-VERSUS** **TOM KIOKO KIEMA.......................................... ………1ST RESPONDENT** **JAMES NTHULI PHILIP..................................................2ND RESPONDENT** **EDWARD KIEMA MUNYAO.......................................... 3RD RESPONDENT** **ADAM THUVA KIEMA.................................................... 4TH RESPONDENT** **MUTUKU NDAMBUKI.................................................... 5TH RESPONDENT** **MUTETI MASILA..............................................................6TH RESPONDENT** **Being an appeal from the judgment of Hon. J. O. Magori, SPM delivered on 6th January, 2022 in Makindu Civil Case No. 152 of 2014).** **JUDGMENT** 1. The Appellant had filed a suit against the Respondents before Makindu Senior Principal Magistrates Court in which she sought the following reliefs: 2. **Vacant possession of the suit land or in the alternative a refund of the purchase price and rent together with interest at commercial rates from date of payment until full repayment.** 3. **A permanent injunction restraining the Defendants by themselves, their agents and or servants from trespassing on the said land.** 4. **Delivery up to 1½ acres of land and/or payment of the value thereof at current market rates as compensation for the loss suffered by the Plaintiff upon breach of the partnership agreement.** 5. **Any other relief that this honourable court may deem just and expedient to grant.** 6. **Costs of the suit and interest.** 7. Though the 2nd to 4th Respondents were given an opportunity to file defence, they neither filed defence nor adduced evidence during the hearing. 8. Upon conclusion of the hearing, the trial magistrate granted the following reliefs in favour of the Appellant: 9. **That the 1st to 4th Defendants are ordered to give the Plaintiff possession of 1 acre which he purchased and the 5 acres which she had leased as per the agreements produced.** 10. **A permanent injunction is issued against the 1st to 4th Defendants by themselves, their agents and or servants from trespassing the 1 acre which the Plaintiff purchased and the 5 acres which she leased upon possession of the portions of lad from the 1st to 4th Defendants.** 11. **In the alternative the 1st and 4th Defendants are ordered to refund the Plaintiff the purchase price for the 1 acre and the lease amount for the 5 acres with interest from the date of filing this case.** 12. **The Plaintiff is awarded costs of this suit and interest at court rates against the first to fourth Defendants.** 13. The Appellant was aggrieved by the trial court’s judgment and filed an appeal to this court in which she raised the following grounds: 14. **That the trial court erred in both law and facts in finding that the Appellant herein did not prove her case against the 5th and 6th Defendants/Respondents.** 15. **That the trial court erred in both law and facts by failing to give specific order on the ownership of the land that the Appellant herein was entitled to.** 16. **That the trial magistrate erred in both law and facts when he failed to consider the evidence adduced by the Appellant herein and the submissions filed therein.** 17. **That the trial magistrate failed to consider that the 1st to 4th Defendants/Respondents had signed the contract giving her 1½ acres as security for the capital given for starting a business.** 18. **That the failure by the learned magistrate to enforce the contract signed by the parties in the said suit amounted to miscarriage of justice.** 19. The parties were directed to file written submissions in respect of the appeal. The Appellant filed her submission dated 29th April, 2025. The 1st Respondent filed his submission dated 3rd October, 2025. The 5th and 6th Respondents filed their submissions dated 8th May, 2025. **Plaintiff’s Submissions** 1. The Plaintiff submitted that the trial magistrate failed to give a specific order as regards the dispute which was before him. She submitted that the court ordered that she be put in possession of the one acre purchased as well as the leased land but at same time ordered a refund of the purchase price and lease amount. The Appellant submitted that execution of such unclear judgment would pose challenges in execution and open up the Respondents to contempt of court. 2. The Appellant further submitted that the trial magistrate was wrong in finding that the Appellant did not breach the contract but failed to enforce the contract by giving ambiguous orders. The Appellant further submitted that the trial magistrate was wrong in failing to enforce breach of contract arising from breach of partnership agreement in which the 1st to 4th Respondents had pledged to give the Appellant 1½ acres if there was breach of the partnership agreement. **First Respondent’s Submissions** 1. The 1st Respondent submitted that the agreements which were entered into by the 1st to 4th Respondents were null and void as the same were entered into in respect of the property of Philip Kiema Munyao who had died and the Respondents had no capacity to enter into the same without first obtaining grant of letters of administration in respect of his estate. 2. The 1st Respondent relied on the case of **Juliana Adoyo Ongunga –vs- Francis** **Kiberenge Abano Mugori Civil Appeal No. 119 of 2015** where it was held as follows: **“Further, the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction, since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties”.** 1. The 1st Respondent further submitted that there was no basis for ordering specific performance. Reliance was placed on the case of **Reliable Electrical Engineering Ltd –vs- Martrac Kenya Limited (2006) eKLR** where it was held as follows: **“Specific performance like any other equitable remedy is discretionary and the court will only grant it on well laid principles;** **The jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract valid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.** 1. The 1st Respondent further submitted that there was no proof of partnership between the Appellant and the 1st to 4th Respondents. Reliance was placed in the case of **Re H and Others (Minors) (1996) AC 563** where it was held as follows: **“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not when assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.....”.** **Fifth and 6th Respondents’ Submissions** 1. The Respondents submitted that there is no privity of contract between them and the Appellant and that the portion from which they purchased their plots is near the assistant chief’s office. The area from which they purchased their plots was about 4 acres whereas the Appellant was given her leased land of five acres from a parcel which was near a river and is about 45 acres. 2. On the issue of privity of contract, the Respondents relied on the case of **Aineah Liluyani Njirah –vs- Agakhan Health Services (2013) eKLR** where it was held as follows: **“Privity of contract is a long established part of the law of contract. In the earlier part of the last century, it was identified by Viscount Haldane LC as one of the fundamental princes of the English Contract Law**. **See Dunlop Pnuemonic Tyre –vs- Selfridge and Co. Ltd [1] The essence of the privity rule is that only the people who actually negotiated a contract (who are privy to it) are entitled to enforce its terms. Even if a third party is mentioned in the contract, he cannot enforce any of its terms nor have any burdens from that contract enforced against him”.** 1. The Respondents also submitted that the Appellant’s appeal is in competent for failure to include the decree in the record of appeal. 2. This being a first appeal to this court, my duty is to re-evaluate the evidence which was adduced before the lower court and arrive on my own conclusions. The duty of the first appellate court was stated in the case of **Selle and Another** **–vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123** as follows: **“.....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 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 it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.** 1. Further in **Okeno –vs- Republic (1972) EA 32** it was held as follows: **“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the Appellant court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.** 1. Again in **Peters –vs- Sunday Post Limited (1958) EA 424** it was held as follows: **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusion of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide”**. 1. I have gone through the evidence which was adduced before the lower court, the submissions before this court as well as the memorandum of appeal. Though the issue locus standi of the 1st to 4th Respondents to be sued was never raised before the lower court, it has been raised on appeal. As locus standi goes to the jurisdiction, the same can be raised at any time or even at appeal stage. The issues which emerge for determination in this appeal are as follows; 2. *Whether the 1st to 4th Respondents had locus standi to be sued before the lower court.* 3. *Whether the Appellant proved that the 5th and 6th Respondents had trespassed on to her property.* 4. *Whether the Appellant had proved that she was entitled to specific performance.* 5. *Did the Appellant proof that she had a partnership agreement with the 1st to 4th Respondents and if so did the 1st to 4th Respondents have capacity to commit the land of the deceased as security for that partnership business.* 6. *Was the Appellant entitled to any reliefs before the lower court.* 7. *Which order should be made on costs.* 8. ***Whether the 1st to 4th Respondents had locus standi to be sued before the lower court*** 9. The Appellant adduced evidence that he begun purchasing one acre from Philip Kiema Munyao (deceased) during his lifetime. The Appellant had paid Kshs.20,000/= to the deceased. The Appellant had not entered into a sale agreement with the deceased. On or about 31st October, 2011 the Appellant entered into an agreement with the 1st to 4th Respondents in furtherance of the purchase which she had begun with the deceased in 2007. 10. The 1st to 4th Respondents were not the administrators of the estate of their deceased father. The Appellant paid Kshs.200,000/= to the 1st to 4th Respondents. The purchase price per acre was 240,000/= and there was therefore a balance of Kshs.20,000/=. What the 1st to 4th Respondents were doing was intermeddling with the estate of the deceased as they had no grant of letters of administration giving them authority to dispose of the property of the deceased. 11. Without grant of letters of administration, the 1st to 4th Respondents had no capacity to sell the deceased’s property and the Appellant could not sue them as they had no capacity to be sued. As was held in the **Julian Adoyo Ongunga** **case (Supra),** locus standi runs to the heart of case and a court proceeding with a case where those sued had no capacity to be sued for their actions which are void is to proceed without jurisdiction. 12. The 1st to 4th Respondents’ action of purporting to proceed to carry on the sale agreement which had been started by the deceased without first obtaining a grant was a nullity and they had no capacity to be sued for recovery of any land or monies paid pursuant to the void actions. 13. In the case of **Jeremiah Gitau & 2 Others –vs- Wandai & 5 Others (1989)** **KEHC 75 (KLR)** Jeremiah Gitau had signed an agreement in which he sold the shares of his father Daniel Gitau who had died. As he had not obtained letters of administration, the sale transaction was held to be void and the shares of his deceased father remained intact. 14. ***Whether the Appellant proved that the 5th and 6th Respondents had trespassed on to her property.*** 15. The evidence of the Appellant before the lower court was that when the process of purchase started, she was out of the country and payment of initial purchase price which was made to the deceased was made by her daughter. She was the one who was shown the location of the one acre being purchased. In her evidence the Appellant testified that she had leased the land before she later developed interest of purchasing it. When the Appellant’s case was reopened before the lower court, she stated while under cross examination that the land which she had leased was near the river. 16. There is no evidence that she had leased land near the assistant chief’s office. The 1st Respondent testified that the Appellant had leased land near the river. This parcel was 45 acres whereas the land near the assistant chief’s office was about 4 acres. If the Appellant’s evidence is anything to go by, then the one acre she had purchased was near the river where she had leased before and was growing vegetables. 17. The 5th Respondent purchased land from Shaban Atwai Musyoka where he has built. His plot is near the assistant chief’s office. When the 6th Respondent purchased his plot, the location was described in the sale agreement. This cannot be the location which the Appellant had been leasing before which she later purchased. The Appellant cannot therefore accuse the 5th and 6th Respondents of trespassing into her plot when her own evidence shows that the plot she purchased was near the river where she had been growing vegetables. 18. The evidence of the 1st Respondent was that the Appellant had sold two of the deceased’s plots to investors. He sued the Appellant but later withdrew the case. The Appellant’s own evidence is that she sold the undisputed portion of the one acre which she purchased. It therefore means that if she sold what she states as undisputed and given the fact that the evidence on record before the lower court is that the 5th Respondent purchased one plot measuring 50 x100 ft and the 6th Respondent bought one plot of 100 x 100 ft. There are 8 plots of 50 x100 in one acre. It therefore means that the Appellant sold 5 plots of 50 x100 ft. 19. There being no evidence from the Appellant that she purchased the one acre on the location occupied by the 5th and 6th Respondents, there is no basis her case against the two would have succeeded. Ground one of the memorandum of appeal of appeal therefore fails. 20. ***Whether the Appellant had proved that she was entitled to specific performance*** 21. The evidence adduced by the Appellant is that she had paid Kshs.20,000/= to the deceased. She paid Kshs.200,000/= to the 1st to 4th Respondents. The purchase price was Kshs.240,000/= . There was therefore a balance of which was not paid. The remedy of specific performance is a discretionary remedy. The circumstances which it may or may not be given were well set out in the case of **Reliable Electrical Engineers Ltd (Supra).** 22. In the instant case, the contract entered into by the Appellant and the 1st to 4th Respondents was void for being entered into by persons who had no locus standi to deal with property of the deceased without having grant of letters of administration. Even if the contract was to be a valid one, the area being claimed by the Appellant has already been partly occupied by the 5th and 6th Respondents who have permanent structures on it. The Appellant has already sold out the remainder of the one acre per her own evidence. Damages would have been an adequate remedy if the contract was valid. The trial magistrate was therefore wrong in ordering for specific performance in the face of all this evidence. 23. ***Did the Appellant proof that she had a partnership agreement with the 1st to 4th Respondents and if so did the 1st to 4th Respondents have capacity to commit the deceased’s land as security in case of failure of the agreement*** 24. The Appellant had alleged that she had entered into a partnership agreement with the 1st to 4th Respondents in respect of a car and a motor bike which she had purchased. She alleged that she was to get profits from the motorbike and as security she had been offered ½ an acre and an additional acre making it 1½ acres. There was absolutely no evidence of partnership tendered as alleged. There being no evidence of partnership established there is no basis upon which the Appellant would have been entitled to compensation in form of 1½ acres for breach of partnership agreement which never existed in the first place. Even if such a partnership existed, the property of the deceased would not have been made a subject of compensation without grant of letters of administration. If there was a partnership between 1st to 4th Respondents and the Appellant that was a private partnership which was not being made for the benefit of the estate of the deceased. Grounds 3, 4 and 5 of the memorandum of appeal therefore fail. 25. ***Whether the Appellant was entitled to any of the reliefs in the plaint*** 26. The trial magistrate made a grave mistake by granting both the main claim and the alternative at the same time. If the Appellant would have proved her case, the trial magistrate ought to have only granted the main relief or the alternative relief but not to grant both as he did. The trial magistrate ordered specific performance of the one acre purchased and the 5 acres leased and at the same time ordered for refund of the purchase price and lease amount. 27. As has been demonstrated hereinabove, the Appellant was not entitled to any of the reliefs sought. She had sued the 1st to 4th Respondents who had no capacity or locus standi to be sued. The Appellant had admitted that she had sold the remainder of the one acre which she said was undisputed. This was confirmed by the 1st Respondent who stated that the Appellant had sold two of their plots to two investors who had built on the same. To grant any relief to the Appellant would amount to unjust enrichment. **Disposition** 1. From the above analysis it is clear that the trial magistrate delivered a judgment which was incapable of execution and contrary to the law. I therefore set aside the entire judgment delivered 6th January, 2022 and in place thereof I make an order dismissing the Appellant’s suit before the lower court with costs to the 1st and 5th Respondents. The 1st and 5th Respondents shall also have costs of this appeal. **......................................................** **HON. E. O. OBAGA, FCIarb** **JUDGE** **JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF MAY, 2026.** **IN THE PRESENCE OF:** Mrs. Isika for Appellant. Ms. Singi for 1st Respondent Mr. Wasolo for 5th and 6th Respondents. Court assistants – Kilonzo and Musyoki