https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3600

Musa v Njine (Suing as the Legal Representative of the Estate of Aloise Simbumbu Murira Igweta – Deceased) (Appeal E005 of 2026) [2026] KEELC 3600 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEELC 3600 (KLR) Republic of Kenya In the Environment and Land Court at Meru Appeal E005 of 2026 JO Mboya, J June 2, 2026 Between Samuel Gitonga Musa Appellant and Miriam Njine [Suing as the Legal Representative of the Estate of Aloise Simbumbu Murira Igweta – Deceased] Respondent (Being an appeal from the Judgment of Hon. S. Ndegwa – Senior Principal Magistrate dated 05.12.2025 vide Meru CMELC No. 82 of 2020) Judgment 1.The crux of the subject appeal relates to the equitable doctrine of Specific performance and the elements that must be established, nay, proven, before a claimant can partake of or benefit from the jurisdiction of the court. Suffice it to state that the Respondent herein had approached the lower court seeking, inter alia; an order for specific performance arising from the sale agreement, which was said to have been entered into between Alois Simbumbu Murira Igweta [now deceased] and the Appellant herein on the 30.04.2009. 2.Before venturing forward to deal with the substratum of the appeal, it is important to highlight the facts underpinning the dispute and thus put the appeal into context. 3.The Respondent herein [who was the plaintiff in the lower court] approached the court vide plaint dated the 09.09.2020. The Respondent posited thus: Alois Simbumbu Murira Igweta [now deceased] entered into a sale agreement with the Appellant; the sale agreement related to and concerned LR Number Nyayo Sirmon/S/S/866 [the suit property]; the purchase price was duly paid; the deceased was allowed to enter upon and take possession of the Suit Land; the Appellant promised to process and facilitate transfer of the suit property; the Appellant thereafter failed to facilitate the transfer; the Appellant has breached the terms of the contract; and the Respondent was entitled to an order of specific performance. 4.Flowing from the foregoing, the Respondent sought the intervention of the court. The Respondent highlighted the following reliefs:a.An order of specific performance compelling the defendant to transfer the suit property known as LR Number Nyayo Sirmon/S/S/866 to the plaintiff and in default, the Deputy Registrar of the court do execute the transfer document in favour of the plaintiff.b.An order of vacant possession and an order of permanent injunction restraining the defendant from entering into or occupying the suit property and mesne profit.c.Costs of the suit and any other relief that this court will deem just to grant. 5.The Appellant [who was the defendant in the lower court] duly entered appearance and filed a statement of defence. The statement of defence is dated the 30.10.2020. The Appellant denied the claims by/on behalf of the Respondent. 6.Furthermore, the Appellant proceeded to and averred thus: The sale agreement referenced by the Respondent is a forgery; the signature attributed to the Appellant does not belong to the appellant; the Appellant did not appear before any advocate to execute the sale agreement; the Land Control Board Consent was never procured or obtained. In addition, the Appellant has posited that it was not possible for him [appellant] to have signed the sale agreement insofar as same was serving a term of imprisonment between the 27.02.2009 to 01.06.2009 at Nanyuki GK Prison. 7.Premised on the foregoing, the Appellant invited the court to find and hold that the Respondent’s claim was misconceived and legally untenable. The lower court was invited to dismiss the suit and to award costs to the appellant. 8.The suit in the lower court was heard and disposed of vide Judgement delivered on the 05.12.2025; whereupon the learned trial magistrate [Hon. S. Ndegwa – SPM] found and held that the sale agreement was valid; the Respondent had proven her entitlement to specific performance; and thereafter Judgment was entered in favour of the Respondent. The Respondent was also awarded costs of the suit. 9.It is the said Judgment and the consequential decree, which has aggrieved the Appellant and thus provoking the appeal. The Appellant filed the memorandum of appeal dated 13.01.2026. The grounds underpinning the appeal are reproduced as hereunder:i.The learned trial magistrate erred both in law and fact for failure to hold and find that the Appellant did not sign any valid sale agreement for the suit property. A miscarriage of justice was thereby occasioned.ii.That the learned trial magistrate erred both in law and fact for failure to hold that the Appellant was serving a sentence at Nanyuki G K Prison when the purported sale agreement for the suit property was drawn and signed. A miscarriage of justice was thereby occasioned.iii.That learned trial magistrate erred both in law and fact for failure to find and hold that no land control bond consent was applied for and obtained within six [6] months from the dated of the sale agreement. A miscarriage of justice was thereby occasioned.iv.The learned trial magistrate erred both in law and fact for holding that the sale agreement purportedly singed by the Appellant on the 30.04.20009 was valid with it was actually not. A miscarriage of justice was thereby occasioned.v.The learned trial magistrate erred both in law and in fact for failure to find and hold that the Respondent did not prove here case to the required legal standards. A miscarriage of justice was thereby occasioned.vi.The learned trial magistrate erred both in law and fact for awarding the Respondent prayers that were not sought in the plaint. A miscarriage of justice was thereby occasioned.vii.The learned trial magistrate erred both in law and fact for finding and holding that the Appellant was out on bail and therefore must have signed the sale agreement. A miscarriage of justice was thereby occasioned.viii.The learned trial magistrate erred both in law and fact by failing to fully comprehend and appreciate the applicable law for blatantly ignoring the binding High Court authorities that were supplied. A miscarriage of justice was thereby occasioned.ix.The learned trial magistrate erred both in law and fact for failure to apply the relevant and applicable law in the circumstances and the failure to consider the appellant’s valid and relevant written submissions and for taking into account irrelevant provisions of the civil procedure Act and the Kenya constitution. A miscarriage of justice was thereby occasioned.x.The learned trial magistrate erred both in law and fact for deliberately delivering a judgment that was against the weight of the pleadings and for misdirecting herself by taking into consideration irrelevant factors crafted in such a manner as to favour the Respondent. A miscarriage of justice was thereby occasioned. 10.The subject Appeal came up for directions on the 24. 03.2026, whereupon learned counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. Thereafter, learned counsel invited the court to issue direction[s] as pertains to the hearing and determination of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submissions. 11.With the concurrence of learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of direction; the Respondent shall file and serve written submissions within 14 days from the date of service; the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 12.The Appellant filed written submissions dated the 20.04.2026 and wherein the Appellant has highlighted four [4] key issues. The issues are: Whether the Appellant duly signed/executed the sale agreement; whether the sale agreement in question was valid in the absence of the requisite Land Control Board Consent; whether there existed a valid contract; and whether the learned trial magistrate misapprehended the facts and the law pertaining to validity of contract. 13.Regarding the first issue, learned counsel for the Appellant has submitted that the Appellant did not execute and or sign the impugned sale agreement dated the 30.04.2009. In particular, it has been contended that the Appellant herein had been charged with the offence of arson vide Nanyuki Chief Magistrate Court Criminal Case number 2015 of 2006 and wherein the Appellant was ultimately found guilty and same was sentenced to serve a term of imprisonment. 14.Furthermore, it has been submitted that the Appellant was admitted at Nanyuki G K Prison from the 27.02.2009 and was released on the 01.06.2009. To this end, it has been submitted that it was not practicable or possible for the Appellant to appear before an advocate at Meru and to execute the said impugned sale agreement. 15.Secondly, the Appellant has submitted that the sale agreement in question contains an identity card number which is separate and distinct from his [appellant’s] identity card number. Suffice it to state that the Appellant has posited that his identity card number is 2466982, which is at variance with the identity card contained in the preamble of the sale agreement dated 30.04.2009. 16.Thirdly, it has been submitted that the sale agreement, which underpinned the Respondent’s claim in the lower court alluded to a Land Control Board Consent being procured and obtained within a duration of six months from the date of execution of the sale agreement. Nevertheless, it has been submitted that no Land Control Board Consent was ever procured or obtained. In this regard, it has been submitted that the sale agreement was therefore rendered invalid and incapable of founding the claim before the court. 17.Lastly, learned counsel for the Appellant has submitted that the learned trial magistrate misapprehended the law as pertains to the validity of contracts; and thereafter arrived at an erroneous conclusion to the effect that the Respondent had duly proved her case to the requisite standard. Furthermore, it has been submitted that the learned trial magistrate erred in law in disregarding binding decisions of the High Court as pertains to the legal effect of lack of the Land Control Board Consent. 18.Based on the foregoing submissions, learned counsel for the Appellant has submitted that the Judgment of the lower court is wrought with various errors; mis - directions; and conclusions, which render the judgment legally untenable. To this end, the court has been invited to find and hold that the subject appeal is meritorious and thus deserving to be allowed. 19.Learned counsel for the Respondent filed written submissions dated 13.05.2026 and wherein same has highlighted four [4] key issues. The issues are: Whether the sale agreement was duly executed and constitutes a valid and enforceable contract; whether the Appellant breached the sale agreement; whether the Respondent was entitled to an order of specific performance; and whether the appeal is merited. 20.Regarding the first issue, learned counsel for the Respondent has submitted that there does exist a valid and lawful sale agreement [contract] which was entered into between the Respondent’s husband [now deceased] and the appellant. In addition, it was submitted that the said agreement was duly signed and executed by both the vendor and the purchaser, respectively. Moreover, learned counsel has posited that the sale agreement was duly attested by an advocate, namely; Victor P Gituma. 21.Additionally, it has been submitted that even though the Appellant disputed the signature contained in the sale agreement, the Appellant did not procure and produce any forensic documents examination report, to prove that the signature complained of does not belong to him. 22.It was the further submission, by the learned counsel for the Respondent that even though the Appellant has denied the signature, mere denial of the signature and bare assertions that the signature was forged does not suffice towards proving fraud/forgery. In any event, it has been submitted that insofar as the agreement was reduced into writing, same cannot be challenged/impeached vide extrinsic evidence. 23.Secondly, it has been submitted that the Appellant herein had covenanted to procure and facilitate the transfer and registration of the suit property, in name of the Respondent’s husband [now deceased] within 90 days from the date of obtaining the certificate of title. Nevertheless, it has been submitted that the Appellant failed to facilitate the transfer of the suit property to the Respondent’s husband and thus violated/breached clause [6] [e] of the sale agreement. 24.The next issue that has been argued touches on and concerns whether the Respondent duly established and proved a basis for the grant of an order of specific performance. To this end, it has been submitted that Respondent indeed placed before the court a duly signed and executed sale agreement, whose terms had never been complied with. Furthermore, it was contended that the Sale agreement complied with the Provisions of Section 3[3] of the Law of Contract Act, Chapter 23 Laws of Kenya. It was therefore posited that the sale agreement was legal and thus could found; and indeed founded a basis for Specific Performance. 25.Furthermore, it has been submitted that the conduct of the Appellant was inequitable and unconscionable. To this end, it has been submitted that the Appellant herein cannot be allowed to retain both the suit property and the total purchase price that was paid to and acknowledged by the Appellant vide the sale agreement. 26.Arising from the foregoing, it has been posited that the Respondent duly placed before the lower court credible evidence, including a valid; legal and enforceable sale agreement. In addition, it has been submitted that the sale agreement which was tendered complied with the provisions of Section 3[3] of the Law of Contract Act, chapter 23 Laws of Kenya. 27.To buttress the foregoing submissions, learned counsel for the Respondent has cited and referenced various decisions. The decisions include: Mukindia versus Mutwiri and six others [2024] KEELC 6344; Evans Otieno Nyakwana versus Cleophas Bwana Ongaro [2014] eKLR; Willy Kimutai Kitilit versus Kibet [2018] KECA 573 and Maina and 87 others versus Kagiri [2014] KECA 880, respectively. 28.Flowing from the foregoing submissions, learned counsel for the Respondent has invited the court to find and hold that the Respondent duly proved and established her case before the lower court; and thus the subject appeal is bereft of merits. The court has been implored to dismiss the appeal; and to affirm the Judgment of the lower court. 29.Having reviewed the record of appeal; the grounds at the foot of the memorandum of appeal; the impugned Judgment; and upon consideration of the written submissions by/on behalf of the respective parties, three [3] key issues crystalize for consideration and determination. The issues are: Whether the Respondent duly proved the existence of a valid and enforceable sale agreement or otherwise; whether the Respondent met or satisfied the elements underpinning the grant of an Equitable order of specific performance or otherwise; and whether the learned trial magistrate misconceived and misapprehended the law as pertains to burden of proof and on whom same lay. 30.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 31.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from; or differ with the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 32.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. In addition, the Jurisdiction is not to be exercised for the mere asking; or willy nilly. 33.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus46.We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses. 34.Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner:We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows:“Apart from the classes of case in which the powers of the Court of Appealare limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof] 35.Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; whether the Respondent duly established the existence of a valid and enforceable sale agreement or otherwise. 36.It is the Respondent who approached the lower court contending that her husband [ now deceased] entered into and executed a valid and lawful sale agreement with the appellant. Furthermore, it is the Respondent who proceeded to and tendered the sale agreement dated the 30.04.2009; and thereafter implored the court to find and hold that the said agreement was legal. 37.Having anchored her case and claim on the basis of the sale agreement, it was incumbent upon the Respondent not only to tender the agreement before the court [which essentially relates to admissibility], but to venture forward and prove the validity of the said agreement. Notably, admissibility of a document is one thing, while proof/authentication of the document is another. 38.In the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR) the Court of Appeal discussed the distinction/ dichotomy between admissibility of a document and proof thereof. The court stated as hereunder:18.The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.19.The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification.20.. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an unauthenticated account.21.. In Des Raj Sharma -v- Reginam (1953) 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa -v- The State (1994) 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only 39.Did the Respondent prove the existence of the sale agreement? It is worthy to underscore that where a document has been attested, or where a document by law requires to the attested, such a document can only be proved by calling one of the attesting witnesses. In this case, it was incumbent upon the Respondent to either procure the attendance of the advocate who prepared the sale agreement and attested same or any of the witnesses indicated on the face of the sale agreement. However, there is no gainsaying that the Respondent did not procure the attendance of any attesting witness. Instructively, the two witnesses [PW2] and [PW3], who were called by the Respondent admitted/conceded that same did not witness the sale agreement. 40.Having failed to procure and call any of the attesting witnesses, the Respondent herein must now face the legal barrier created vide the provisions of Section 71 of the Evidence Act, Chapter 80 Laws of Kenya. The said section stipulates thus:71.Proof of execution of document required by law to be attested.If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence:Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document which has been registered in accordance with the provisions of any written law, unless its execution by the person by whom it purports to have been executed is specifically denied. 41.To my mind, the failure to summon or call any of the attesting witnesses, negates proof of the validity of the sale agreement. I must reiterate that even though the sale agreement was duly admitted as an exhibit before the court, mere production/admissibility does not denote proof of the document, namely; the sale agreement. 42.The other aspect that merits consideration touches on the question as to whether the execution of the said sale agreement by the Appellant was proved. To start with, the Appellant contended the signature affixed on the sale agreement was a forgery. In addition, the Appellant posited that at the time when the sale agreement is said to have been executed at Meru Town, same [appellant] was serving a jail term at Nanyuki G K Prison. Notably, the Appellant tendered and produce a copy of certificate of imprisonment from Nanyuki main Prison. 43.It is apparent from the certificate of imprisonment, which was tendered and produced by the Appellant as exhibit D13, that the Appellant was admitted to Nanyuki Prison on the 27.02.2009; and was only released on the 01.06.2009. The date that is shown on the sale agreement falls within the period when the Appellant was serving a jail term. For good measure, the contents of the certificate of imprisonment [exhibit D13] were never impeached or controverted by the Respondent. 44.Surely, the Appellant herein could not have been allowed to leave prison and come to Meru, where the impugned sale agreement is indicated to have been executed. In any event, if the Appellant was ever released temporarily, then it was incumbent upon the Respondent to demonstrate/prove. However, the totality of the evidence on record points to the fact that the Appellant was in prison and thus could not have executed the sale agreement. 45.Moreover, it is not lost on me that the Respondent is the one who posited that the Appellant duly signed the sale agreement. The Appellant however denied the signature. In this regard, the burden of proving that the disputed signature belonged to the Appellant lay on the Respondent. Suffice it to state that the Respondent was called upon to tender cogent; compelling; and concrete evidence to prove the assertions. It is the Respondent who ought to have procured and obtained a documents examiner report in an endeavor to prove that the impugned signature belonged to the appellant. It was not the other way round, as submitted by the learned counsel for the Respondent. 46.At this juncture, it is important to reference the provisions of Section 70 of the Evidence Act, Chapter 80 Laws of Kenya. The section states as hereunder:70.Proof of allegation that persons signed or wrote a document.If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. 47.I beg to state that the Respondent did not satisfy or meet the threshold highlighted vide Section 70 of the Evidence Act, which deploys the word “must”, so that it was incumbentc upon the claimant to really tender cogent evidence. 48.There is one more outstanding aspect. The aspect touches on the identification card number contained in the body of the sale agreement. The sale agreement adverts to identity card number 2466985; while the number contained in the identity card which was produced before the court shows that the appellant’s I. d Number is 2466982. The variation between the identity card number alluded to in the sale agreement and the one contained in the I. D card number of the appellant, was never addressed. 49.I beg to state that it was the Respondent herein who had made the various assertions. The Respondent was therefore chargeable with the burden of proving the assertions. Sadly, the Respondent adopted and deployed a lackluster approach, by merely throwing the sale agreement on the face of the court. Suffice it to posit that there were several issues arising from the sale agreement that required appropriate address, but which unfortunately, were not addressed. 50.I wish to point out that the serious question[s] surrounding the sale agreement were never answered. For good measure, the assertions by the Respondents remained at the level of allegations, which were never proven. Pertinently,allegations; or bare assertions do not constitute evidence, which is necessary to prove the claims before a Court of Law. 51.In the case of James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR), the Court of Appeal underscored the obligation of the claimant to prove the assertions to the requisite standards. The court stated thus:17.On matters evidence, Madan, JA (as he then was) in CMC Aviation Ltd v. Crusair Ltd (No1) [1987] KLR 103 stated: “…Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven....”18.The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides as follows:“1.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.2.When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person.”Section 109 of the same Act further provides:“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 law that the proof of that fact lie on any particular person.”19.In Karugi & Another v Kabiya & 3 Others [1987] KLR 347, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. 52.The next issue which falls for consideration relates to whether the Respondents established the requisite elements that underpin the grant of the equitable remedy of specific performance. It is worthy to state that the remedy of specific performance can and does issue albeit in exceptional circumstances where there is no adequate or alternative remedy. In addition, the remedy of specific performance can only be gone into where the claimant demonstrate[s] the existence of a valid; lawful; and enforceable contract, which does not suffer from any defect. 53.As pertains to the subject matter, the learned trial magistrate proceeded to and decreed specific performance. The learned trial magistrate held that there was in existence a valid and enforceable sale agreement [contract] which could underpin the said remedy. Moreover, it is worthy to point out that the learned trial magistrate referenced and invoked the dictum in the case of Reliable Electrical Engineers Limited versus Mantrac [k] limited [2006] eKLR. 54.However, despite applying the dictum in the decision [supra], the learned trial magistrate did not first interrogate whether there was a valid and lawful agreement. In fact, the learned trial magistrate failed to discern the various pitfalls that inflicted the sale agreement. Firstly, the learned trial magistrate failed to appreciate that the impugned sale agreement had not been proved. [see Section 70 and 71 of the Evidence Act]. 55.Additionally, it is worthy to recall that the impugned sale agreement had stipulated that the vendor was obligated to procure and obtain the Land Control Board Consent. To my mind, it appears that both the vendor [whoever he was] and the purchaser new that the Land Control Board Consent was a pre-condition to the completion or effectuation of the transfer. [See clause [11] of the sale agreement]. 56.Be that as it may, no evidence was tendered and produced by the Respondent that the Land Control Board Consent [if any] was ever procured or obtained. In the absence of the Land Control Board Consent, which was a pre-condition, it then means that the transaction leading to the issuance of the order of specific performance was illegal. 57.In the case of Karanja & 3 others (As Legal Representative of the Estate of the Late Walter Karanja Muigai) v Kirundi & another [2016] KECA 292 (KLR), the Court of Appeal considered the legal implication[s] of failure to procure a Land Control Board Consent. 58.The Court stated thus:54.We have therefore come to the conclusion that the consent obtained on 16th December, 1993 was not valid and the purported validation of a consent obtained outside the stipulated period is without the force of law. The upshot of the above is that the sale of the suit property being agricultural land became null and void on expiry of six months from the date of the agreement i.e. 26th October, 1990.55.However, this is not to say we are unsympathetic to the Respondents but this being a Court of Law, our sympathies have no place. Suffice to state that the provisions of the Land Control Board Act are harsh, but regrettably equity cannot be of any help. In Karuri v Gituru (Supra), this Court held that:“The provisions of the Land Control Board Act are of an imperative nature, there is no room for the application of any doctrine of equity to soften its harshness.” 59.The position highlighted in the decision [supra] was also affirmed by the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR). The court stated thus:To begin with it is difficult to comprehend the legal basis of the view that the court has the power to ignore clear and express provisions of a statute under the guise of equity. We have already pointed out that in Karuri V Gitura (Supra), Simiyu V. Watambamala (Supra) And Wamukota V Donati (supra) this Court held that the provisions of the Land Control Act were clear enough to leave no room for application of the principles of equity.But perhaps the more compelling argument against the approach taken by the learned judge lies in the provisions of our Judicature Act, cap 8 Laws of Kenya, regarding the application of statutes and the doctrines of equity. Section 3(1) thereof embodies what has been called the hierarchy of norms and provides for how the jurisdiction of the courts in Kenya shall be exercised. The section creates a deliberate and hierarchical sequence of laws, starting with the Constitution, followed by Statutes and next the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August 1897. It does not require too much imagination to see that under section 3(1) the application of the substance of the common law and the doctrines of equity is subject first to the Constitution and the Statutes. Indeed to emphasize that the substance of common law and the doctrines of equity cannot override provisions of the statute, section 3(1) (c) makes it clear that the substance of common law and the doctrines of equity apply only in so far as the statute does not apply. (Emphasis added). In other words, the Judicature Act does not allow a court of law to ignore an express statutory provision under the guise of applying the doctrines of equity. 60.I am aware of the contrary position that has been posited and held by a separate bench of Court of Appeal. The contrary position obtains in decisions including: Macharia Mwangi and 87 others versus Davidson Mwangi Kagiri [2014] KECA; and Willy Kimutai Kitilit versus Kibet [2018] KECA; but I beg to state that the provision of the Land Control Act, which underpin the issuance of the Land Control Board Consent, have remained in situ. The said provisions cannot be amended vide proclamations of the various courts, unless same are [sic] declared invalid taking into account the provisions of the Article 2[4] of the Constitution, 2010. 61.Be that as it may, the critical issue in respect of the subject matter relates to the absence of a valid and enforceable sale agreement. Coupled with the fact that the Land Control Board Consent was never obtained, then no basis was laid or established to warrant the grant of the orders/remedy of specific performance. The impugned agreement suffered from a legal defect, or infirmity which negate[s] the issuance of an Order of Specific performance. 62.In the case of Macho & another v Athuman & 2 others [2025] KECA 2078 (KLR) Court of Appeal re-affirmed the Law on Specific performance and stated as hereunder:42.An award of specific performance is in principle an equitable relief which lies within the court’s discretion to Page 23 of 27 grant. It is issued where common law remedies, such as pecuniary damages will be inadequate. An order of specific Page 24 of 27 performance mainly enforces the terms of an executed contract and, as in the present case, contracts relating to land or interest therein. We respectfully concur with the findings of this Court in Michael Murithi Muthii vs. Cecilia Wanjiru Cooper & 3 others (2021) KECA 964 (KLR) where it was held that: “As regards whether an order of specific performance was properly issued in the circumstances of this appeal, it is worth repeating that such an order is an equitable remedy issued at the discretion of the court. It will be issued where the judge is satisfied that it is equitable to grant it. As is the norm, an equitable remedy will not be granted to a party who does not deserve it, for example by reason of unclean hands or failure to himself to do equity. Where a judge has exercised his discretion, this Court will not interfere unless it is demonstrated that he misdirected himself in law, or he considered matters he should not have considered or he failed to considered matters he should have considered or that the decision is plainly wrong. (See United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd [1985] E.A 898).”43.This Court in the case of Caltex Oil (Kenya) Limited vs. Rono Limited (2016) KECA 457 (KLR) cited with approval the decision of Gharib Suleman Gharib vs. Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998 (UR), and held that: “The jurisdiction to order specific performance is based on the existence of a Page 25 of 27 valid and enforceable contract and being an equitable relief, such relief is more often than not Page 26 of 27 granted where the party seeking (sic) 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.” 63.Flowing from the foregoing, I am not persuaded that the order of specific performance is well grounded. On the contrary, the totality of the evidence on record points to the direction that the order in question was issued in vacuum. 64.The last issue for consideration relates to whether the learned trial magistrate misapprehended and mis- applied the law as pertains to burden of proof. To start with, it is the Respondent who had approached the court contending that the impugned sale agreement was duly signed and executed by the appellant. The Respondent therefore bore the burden/obligation of proving the assertion. The Respondent was obligated to place before the court cogent; concrete; and compelling evidence to demonstrate the said assertion. [See the decision in Daniel Toroitich Arap Moi versus Mwangi Stephen Mureithi [2014] eKLR]. 65.Despite the fact that the burden of proof lay on the shoulder[s] of the Respondent, who was the Plaintiff in the lower court, the learned trial magistrate at paragraph 38 of her Judgment shifted the burden of proof to the appellant. 66.The learned trial magistrate stated thus:“ 38.It is trite law that he who alleges must prove. The defendant has failed to discharge this burden as he produced no credible evidence to show that his signature was forged. His assertions that he was imprison is equally unpersuasive since the certificate of imprisonment he submitted does not indicate the date of conviction.” 67.I wish to state that the exposition of the law by /on behalf of the learned trial magistrate, was with respect, erroneous. The said exposition of law does not align with the provisions of Sections 108 and 109 of the Evidence Act chapter 80 Laws of Kenya. 68.Simply put, I come to the conclusion that the Judgment of the learned trial magistrate, is wrought and fraught with several errors; mis-directions and conclusions. The errors are so pervasive and thus the Judgment cannot be sustained. 69.On the contrary, the Judgment calls for setting aside. Conclusion 70.The Respondent is the one who approached the court making the various assertions. The Respondent therefore bore the burden of proving her claim. The burden had to be discharged to the requisite standard. Sadly, the burden was never discharged. Consequently, the assertions at the foot of the Respondent’s claim remained at the level of allegations. 71.To this end, there is no foundation upon which Judgment could have been entered in favour of the Respondent. Needless to say, that the appeal beforehand is meritorious. Final orders: 72.Flowing from the discussion alluded to hereinbefore, the final orders that commend themselves to the court are:i.The Appeal be and is hereby allowed.ii.The Judgment of the learned trial magistrate dated the 05.12.2025; and the consequential decree arising therefrom, be and are hereby set aside.iii.In lieu thereof, an order be and is hereby made dismissing the Respondent’s suit vide Plaint dated the 09.09.2020.iv.Costs of the suit in the lower court be and are hereby awarded to the Appellant.v.Costs of the appeal be and are hereby awarded to the Appellant.vi.The Costs in terms of clause [iv] and [v] shall be agreed upon and in default, same shall be taxed in the conventional way. 73.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 2ND DAY OF JUNE, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMr. Mogusu holding brief for Bwonwonga for the AppellantMr. Mwirigi Batista for the Respondent