Joshua Kathawe M’thiruaine v Jeremiah Kailemia Mirithu [2018] KEELC 2001 (KLR)
The bottom line
#A Kenyan land seller who transferred land as agreed was not in breach just because a trespasser occupied it, so the buyer got nothing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate erred in failing to find that the appellant performed his part of the contract by transferring the suit land to the respondent
- 2.Whether the trial magistrate erred in disregarding the expert evidence of the Land Demarcation Officer confirming the transfer and location of the land
- 3.Whether the trial magistrate erred in failing to properly analyze the evidence, in particular the respondent's admission that the land had been transferred to him
- 4.Whether the respondent would be unjustly enriched by retaining the transferred land while also being awarded the refund and liquidated damages
- 5.Whether the award of Kshs. 150,000/= was a penalty rather than damages properly laid on a basis
Key legal issues
#Whether the appellant breached the land sale agreement by failing to put the respondent into actual possession
No breach; the appellant's role was merely to ensure the land existed and to transfer it, which he did, and clause 3 of the agreement did not obligate him to evict a trespasser
The parties jointly viewed the land when it was vacant and executed the agreement on that basis, so no special condition required vacant possession. The trespasser, Peter Kaberia, entered after execution of the agreement and payment of the price, was not the appellant's agent, and held no rights in the record of existing rights. The magistrate's interpretation that the appellant had to remove any trespasser rewrote the agreement. The respondent neither asked the trespasser to leave nor took legal action, and adduced no evidence of a competing claim.
Weight to be accorded the expert evidence of the Land Demarcation Officer
The magistrate erred in failing to accord the Demarcation Officer's evidence appropriate weight; it proved the land existed, had been transferred, and was registered in the respondent's name
DW3, the Land Demarcation Officer in charge of the Athinga Athanja Adjudication Section, produced the record of existing rights showing the respondent as current registered owner and the appellant as his predecessor, confirmed Peter Kaberia never appeared as owner, and identified the boundaries in the presence of neighbours. This unshaken evidence corroborated the transfer and defeated the respondent's allegation that the land shown to him belonged to a third party.
Whether the award of Ksh 150,000/= liquidated damages was sustainable
The award could not stand because the finding of breach on which it was founded was wrong, though the trial magistrate was right to enforce the penalty stipulated by the parties had breach been established
The magistrate's finding that parties should be held to the terms of their agreement was proper, but his holding that the appellant breached the agreement was incorrect. Had breach been established, nothing would have prevented the magistrate from implementing the contractual terms as framed. The award collapsed with the reversed finding of breach.
Unjust enrichment - the trial court's failure to address the fate of the land upon ordering a refund
Ordering a refund while leaving the registered transfer intact and unaddressed would unjustly enrich the respondent; the trial court left the parties uncertain as to ownership
The plaint and evidence were silent on the return of the land. Ordering refund of the purchase price without addressing what would happen to the land left the parties to conjecture as to their rights. Given the appellant had transferred the land and received nothing but a liability, the appellant's apprehension of unjust enrichment was genuine.
Legal principles established
#- Parties must be bound by the terms of their agreement; a court cannot rewrite an agreement for the parties
- The intention of the parties to an agreement is to be ascertained from the document itself
- A seller of land whose obligation was merely to ensure the land existed and to transfer it is not liable in breach for the presence of an unforeseen trespasser, absent an express obligation to deliver vacant possession
- A first appellate court must review the evidence adduced at trial and reach its own conclusions
- A court should not leave parties to conjecture as to their rights at the end of a trial
Court orders
#- 1.The entire judgment and all consequential orders of the trial magistrate in Tigania PMCC No 105 of 2011 are set aside and substituted with an order that the said suit is dismissed
- 2.The respondent shall bear the costs of both the appeal and the trial in Tigania PMCC No 105 of 2011
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Tigania Senior Principal Magistrate's Court
- Civil Case No. 105 of 2011
- Jurisdiction invoked
- First appeal to the Environment and Land Court against the decision of the Senior Principal Magistrate's Court
Relief refused
#Respondent's claim for refund of Ksh 75,000/= consideration and Ksh 150,000/= liquidated damages
The appellant was found not to have breached the agreement; the mere presence of an unforeseen trespasser did not amount to breach, and the magistrate's contrary finding was wrong
Costs
The respondent shall bear the costs of both this appeal and the trial in the Tigania PMCC No 105 of 2011
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite that a court of law can not rewrite an agreement for the parties. Parties must be bound by the terms of their agreement.
The general rule is that the intention of the parties to an agreement should be ascertained from the document as it is deemed that what the parties intended is what was stated in the agreement.
The mere presence of a trespasser on the land was in my view insufficient cause on which to base allegations of breach.
clause 3 of the agreement cannot be interpreted so as to foist the liability of evicting a trespasser whose presence on the land was unforeseen as at the time of the execution of the agreement.
it is not proper for any court of law to leave the parties to conjecture as to their rights at the end of a trial.
a. The entire judgment and all consequential orders of the trial magistrate in Tigania PMCC No 105 of 2011 are hereby set aside and substituted with an order that the said suit Tigania PMCC No 105 of 2011 is hereby dismissed.
b. The respondent shall bear the costs of both this appeal and the trial in the Tigania PMCC No 105 of 2011
Issues in the judgment
#The judgment does not state its own Environment and Land Court case number or citation; the appeal is identified only by reference to the trial case, Tigania PMCC No 105 of 2011
Internal inconsistency in the quoted agreement as to the possession date - clause 3 as reproduced states 28/2/2008 while the trial court is said to have read it as 28/2/2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kathawe M’thiruaine v Jeremiah Kailemia Mirithu [2018] KEELC 2001 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2001/eng@2018-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.