https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/416

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **ENVIRONMENT AND LAND CASE NO. E056 OF 2021** **SAMUEL MUTHONDWE........................................................................................PLAINTIFF** **VERSUS** **THE MAKUENI COUNTY SAND CONSERVATION & UTILIZATION AUTHORITY…….DEFENDANT** **JUDGMENT** **THE CLAIM** Samuel Muthondwe (hereinafter referred to as the plaintiff) filed this suit on 23/12/2021 vide a plaint with an even date. The plaintiff averred that he was the registered owner of land parcel number Nguumo/Syumile A/299 in Makindu Sub-county within Makueni County. That he entered into a gentleman’s agreement with the defendant to harvest and collect sand from his land within an agreed area. The plaintiff further averred that the defendant harvested and collected sand outside the agreed area and as a result, the plaintiff’s well dried up, resulting in great losses and damage to the plaintiff’s other farming activities on the suit land. The plaintiff averred that he was not paid any money by the lorry owners who were harvesting and collecting sand from the suit property. The plaintiff claimed that the actions of the defendant are unlawful and illegal as they contravene the provisions of part IV section 12 (5)(2) of the Makueni County Sand Conservation and Utilization Act, 2015 (provision does not exist in the said law). The plaintiff thus prays for judgment against the defendant for: 1. A permanent injunction restraining the defendant, its servants, agents, employees and/or whom whatsoever from continuing to enter trespass, harvest sand and interfere with the plaintiff’s parcel of land; 2. An order that the plaintiff be paid for sand harvesting and collection by the lorry owners on the suit land; 3. Costs and interest of the suit; 4. Any other relief that this Honourable court may deem fit and just to grant. **THE DEFENDANT’S DEFENCE** The defendant entered appearance on 24/1/2022 but filed a statement of defence on 30/10/2023. The defendant averred that the plaintiff had no authority to enter into an agreement with the defendant for the use of a public utility. That the plaintiff claims to be the owner of a river on the banks of which land parcel number Nguumo/Syumile A/299 ends. The defendant further averred that the plaintiff seeks to deny the public access to the river through a known road which boarders the suit parcel of land and that well digging close to a river is not allowed as the same has adverse effects on the availability of water for the public. The defendant averred that no sand has been or was being harvested on the plaintiff’s land by the defendant or the defendant’s licensed sand dealers. The defendant further averred that by reason of the plaintiff’s actions, the defendant has suffered loss of revenue and conservation and rehabilitation efforts have been curtailed and the defendant’s performance of its functions unattainable on Mivuyuni river. That the public has been denied access to the river and use of a public road by the plaintiff. The defendant prayed for dismissal of the plaintiff’s suit with costs. **THE EVIDENCE** ***The Plaintiff’s Case*** At the hearing of the suit, only the plaintiff testified in support of his case. The plaintiff adopted his statement filed in court as part of his testimony. The plaintiff testified that he was the registered proprietor of land parcel number Nguumo/Syumile A/299. That he entered into an oral agreement with the defendant for purposes of harvesting and collecting sand from the plaintiff’s parcel of land within an agreed area of 100 metres away from the borehole/well which is on the said land. The plaintiff stated that the defendant had been harvesting and collecting sand beyond the agreed area thereby causing saline and drying up of the well and affecting the plaintiff’s other farming activities. The plaintiff also stated that the lorry owners were not paying him for the sand harvested and collected but were paying the loaders. That since the plaintiff was the owner of the land, all payments ought to be made to him as per the law. The plaintiff urged the court to allow his claim as prayed. The plaintiff stated that ever since he obtained the temporary order of injunction, the defendant stopped interfering with his land. The plaintiff purportedly produced three documents in evidence but only two are on record. ***The Defence Case*** The defendant neither attended court during the hearing nor called witnesses in support of its case, despite having been duly served with a notice. **MAIN ISSUES FOR DETERMINATION** In my view, the main issues for determination are as follows: 1. Whether the plaintiff is the registered proprietor of land parcel number Nguumo/Syumile A/299; 2. Whether there was an agreement between the plaintiff and the defendant for the harvesting and collection of sand on land parcel number Nguumo/Syumile A/299; 3. Whether the defendant breached the terms of the agreement; 4. Whether the plaintiff is entitled to the reliefs sought; 5. Who should bear the costs of the suit? **THE PLAINTIFF’S SUBMISSIONS** The plaintiff filed written submissions. He submitted that his evidence was unchallenged, uncontroverted and consistent. The plaintiff submitted that by allowing harvesting of sand within 15 metres from the well and failing to rehabilitate the affected area, the defendant breached the law and its own guidelines. The plaintiff argued that the defendant’s continued sand extraction without authority or payment deprived the plaintiff of quiet possession and income, amounting to both trespass and conversion. That the defendant’s statutory role under section 6(1) of the Makueni County Sand Conservation and Utilization Act does not authorise invasion of private property and that the defendant failed to balance conservation and respect for land ownership. The plaintiff submitted that he was entitled to damages for trespass. The plaintiff further submitted that he had proven ownership of the suit parcel of land, unauthorized sand harvesting by the defendant, resultant environmental and economic harm and non-payment for sand collected. That the burden shifted to the defendant to prove otherwise. The plaintiff relied on section 35 of the Makueni County Sand Conservation and Utilization Act and submitted that revenue raised from sand sale must be shared equitably with 5% allocated to affected landowners. The plaintiff argued that he had discharged his burden and urged the court to allow his claim with costs. **THE DEFENDANT’S SUBMISSIONS** No submissions were filed on the part of the defendant. **ANALYSIS AND DETERMINATION** I have considered the plaintiff’s claim. It is the duty of the plaintiff to prove his claim against the defendant on a balance of probabilities. It is trite law that it is not enough to make allegations in a pleading. The plaintiff must adduce evidence to prove such allegations and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of ***Kirugi & Another v Kabiya & 3 Others [1987] KLR 347***, the Court of Appeal held thus: ***“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”*** Similarly, in the authority of ***Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR)***, the Court of Appeal held: ***“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.”*** The foregoing reveals that just because the defendant fails to call evidence, it is not automatic that the plaintiff’s claim must be allowed. The plaintiff’s claim must still be weighed on the scale of the requisite standard of proof. The plaintiff’s evidence must be sufficient, credible and able to stand in the absence of rebuttal from the defendant. I will proceed to consider and determine the main issues as stated hereinabove. 1. ***Whether the plaintiff is the registered owner of land parcel number Nguumo/Syumile A/299.*** The plaintiff produced in evidence a copy of the title deed for land parcel number Nguumo/Syumile A/299 which indicates that he is the registered proprietor thereof. There is no contrary evidence. I therefore find no difficulty in asserting that the plaintiff is the owner of the parcel of land in issue. 1. ***Whether there was an agreement between the plaintiff and the defendant for the harvesting and collection of sand on land parcel number Nguumo/Syumile A/299.*** The plaintiff alleged that he entered into what he called a “gentleman’s agreement” with the defendant. A “gentleman’s agreement” is a phrase used to describe an informal agreement based on trust, honour, or mutual understanding rather than a formal written contract. It usually means that the parties intend to be bound morally or socially, but the arrangement may not contain the usual legal formalities of an enforceable contract. Legally, there is no special category of contracts or agreements known as “gentleman’s agreement.” The legal question is whether the arrangement satisfies the ordinary requirements of a contract. A gentleman’s agreement may be legally enforceable if it contains the elements of a valid contract, such as: 1. **Offer and acceptance.** One party makes a clear proposal and the other accepts. 1. **Consideration.** Something of value is exchanged (money, services, a promise, etc.). 1. **Intention to create legal relations.** The parties intended that the agreement would have legal consequences. 1. **Certainty of terms.** The obligations are sufficiently clear. 1. **Capacity and legality.** The parties must have legal capacity and the agreement must be lawful. In his testimony, the plaintiff stated that he entered into an oral agreement with the defendant for purposes of harvesting and collecting sand from the plaintiff’s land within an agreed area of 100 metres away from the borehole/well on the said land. It is not clear whether there was any consideration for the agreement and if at all, what the nature of the consideration was. The terms of the alleged oral agreement are not clear or certain. The plaintiff alleged that lorry owners who were harvesting on the land were not paying him. The lorry owners are not parties to this suit and it is not clear whether they were party to the gentleman’s agreement and what their obligations were. It is not clear to the court why the plaintiff is blaming the defendant for non-payment by lorry owners. Without clear terms of the alleged agreement, it is difficult for the court to ascertain what the obligations of the defendant were and how the actions or inactions of the alleged lorry owners are linked to the defendant. It is not the duty of the court to imagine or speculate on what the parties could have agreed upon. Other than merely saying that they agreed, it is not clear how the offer and acceptance was made and by whom. It is not known when the gentleman’s agreement was made. The plaintiff alleges that they agreed that sand would be harvested and collected within an agreed area of 100 metres away from the well/borehole on the land. There is no evidence of existence of such term. Section 3(3) of the Law of Contract Act provides: ***“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.”*** Section 3(6) thereof provided that for the purposes of subsection (3), "disposition" includes a transfer and a device, bequest or appointment of property contained in a will and "interest in land" means any estate in or charge over land, or any estate in or charge over the proceeds of sale of land. Furthermore, the same provision defines the term "transfer" to include a mortgage, charge, lease, conveyance, assignment, assent, vesting declaration, vesting instrument disclaimer, release and every other assurance of property or any interest therein by any instrument other than a will or a codicil. If indeed the agreement alleged by the plaintiff existed, it would amount to a disposition of an interest in land and thus subject to section 3(3) of the Law of Contract Act. It therefore follows that when it concerns a disposition of an interest in land, a gentleman’s agreement has no place and as such. Such an agreement cannot be enforced in the circumstances. Furthermore, the defendant is a body corporate. The plaintiff did not state which representative of the defendant entered into the agreement with him. Were there any witnesses to the agreement? Who was allowed to harvest? Where was the harvesting to be done? For how long? What were the payment terms? What were the agreed restrictions? A body corporate cannot, by itself enter into transactions. Any transaction involving a body corporate must be done by authorized representatives. It is my finding that the plaintiff has miserably failed to prove the existence of a legally acceptable and enforceable agreement between him and the defendant. 1. ***Whether the defendant breached the terms of the agreement.*** I have made a finding herein above that there is no proof of existence of the alleged agreement. Without an agreement, there cannot be breach. The plaintiff alleges the defendant continued harvesting outside the agreed area and interfered with the land. In my view, it would have been appropriate for the plaintiff to produce in evidence a survey report showing the boundaries of his land, the agreed harvesting area and the area allegedly invaded without authority. No photographs of even videos of sand excavation were produced in evidence. There is no evidence of reports or permits by the relevant authorities to show that such activity was being conducted on the plaintiff’s land. Section 19 of the Makueni County Sand Conservation and Utilization Act provides in part as follows: ***“No person shall use, cause or permit to remove sand from any river, farm or other land whether public or harvester, private for the purposes of sale unless valid license issued under this Act for such trade or business.*** ***(2) Any person who contravenes the provisions of subsection (1) commits an offence.”*** The plaintiff did not produce any licenses to show that indeed, sand harvesting was being done on his land. The plaintiff alleged that he was not being paid for the sand harvested on his land. He submitted that failure by the defendant or the lorry owners to pay him contravened section 35(1) of the Makueni County Sand Conservation and Utilization Act. The said provision stipulates that: ***“Revenue raised from the sale of sand shall be shared in the following proportion-*** ***(a) 50% of all revenue collected shall go to Conservation as shall be determined by the Authority;*** ***(b) 35% shall be given to the Authority for the day to day running of its activities;*** ***(c) 5% shall go to Water Resource Users Associations for conservation and operations;*** ***(d) 10% shall go to the community.”*** The law does not state that landowners are to be paid. No evidence was adduced by the plaintiff to prove that he was entitled to any payment and by whom. Section 27 of the Makueni County Sand Conservation and Utilization Act provides as follows: ***“(1) The Authority will in coordination with the Sub County Committees and Water Resource Users Association designate and gazette or otherwise communicate sand utilization and conservation sites from time to time.*** ***(2) No person shall harvest sand from any area not designated as a sand utilization site by the Authority.*** ***(3) Each designated sand-utilization site shall be required to develop a management plan to guide in the rehabilitation of the sites.”*** The plaintiff did not adduce any evidence whatsoever to show that his land was designated as a sand utilization and conservation site. Without designation as required by law, sand harvesting on such a site would be illegal. The court cannot enforce an illegality. The plaintiff alleged that sand harvesting caused water salinity/drying of the well and damage to farming activities. The plaintiff did not produce in evidence a report from a Hydrogeologist to show the effect of sand harvesting on groundwater or the cause of the salinity/drying. There is no report by an Agricultural officer showing damage to the crops or reduced productivity. It is my view that there is no evidence to show that the defendant acted in breach. In any event, there is no proof of existence of any agreement capable of being breached. 1. ***Whether the plaintiff is entitled to the reliefs sought.*** One of the prayers sought by the plaintiff was for payment by lorry owners. The plaintiff did not join the lorry owners to the suit. The lorry owners were not even disclosed. Their identity is unknown. I doubt that the court can order payment against persons who are unknown and not party to the suit. As for the permanent injunction, there is no evidence to prove that the defendant entered or trespassed or harvested sand from the plaintiff’s land. There is no evidence to show that the defendant interfered in any manner with the plaintiff’s land. In my view, an injunction cannot be issued as a matter of course. There must be evidence of violation, either continuing or threatened. No such evidence was adduced by the plaintiff. **DISPOSITION** In view of the foregoing, I find that the plaintiff has failed to prove his case against the defendant on a balance of probabilities. Consequently, I proceed to **DISMISS** the suit with costs to the defendant. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 16TH DAY OF JULY, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**