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ELCDismissedNot stated in the judgment

Malii v Mukonzi (Environment & Land Case 87 of 2018) [2023] KEELC 45 (KLR)

Environment and Land Court
19 January 2023
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued for a declaration that Plot No 18 Nthongoni Market was his sole property, plus Kshs 215,000 with mesne profits or monthly rent of Kshs 15,000 from April 4, 2012, alternatively eviction of the defendant, costs and interest. His case was that the parties entered a sale agreement on November 21, 2009 at a consideration of Kshs 560,000, of which only Kshs 198,000 was paid, and that the defendant remained in occupation. The defendant denied the claim, asserting the purchase price was Kshs 210,000, that the plaintiff's agreement was forged and altered, and that he validly registered the plot in his name with the County Government of Makueni. In cross-examination the plaintiff conceded that he inserted the figure of Kshs 560,000 in the November 2009 agreement after it was signed, and that he freely executed a further agreement dated March 14, 2010 in which he acknowledged receipt of the full purchase price and consented to transfer. The court found the defendant procedurally obtained registration, that the plaintiff was estopped under section 120 of the Evidence Act from denying his attested declaration, and that parties are bound by their contract, applying the principle that a court cannot rewrite a contract absent pleaded and proved coercion, fraud or undue influence. The plaintiff failed to prove non-payment on a balance of probabilities. The suit was dismissed with costs to the defendant on January 19, 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the suit property belongs to the plaintiff

Key legal issues

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01

Ownership of Plot No 18 Nthongoni Market

Holding

The suit property validly belongs to the defendant, who procedurally obtained registration in his name

Reasoning

The plaintiff admitted altering the purchase price figure in the November 21, 2009 agreement after execution. He also freely executed the March 14, 2010 agreement in which he acknowledged receipt of the full purchase price and consented to transfer. The defendant applied for and obtained registration, paid registration fees, and was reflected as proprietor in the County Government records. The plaintiff is estopped under section 120 of the Evidence Act from denying his attested declaration.

p. 3
02

Whether the plaintiff is estopped from denying receipt of the full purchase price

Holding

Yes; the plaintiff is estopped under section 120 of the Evidence Act from denying his declaration in clause 4 of the March 14, 2010 agreement

Reasoning

The declaration was duly attested before three competent witnesses, one of whom was DW2. Having freely executed the agreement acknowledging receipt of the full purchase price, the plaintiff could not resile from it. The parties are bound by their contract and the court cannot rewrite the bargain absent pleaded and proved coercion, fraud or undue influence.

p. 3

Legal principles established

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  • A court of law cannot rewrite a contract between parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved

Court orders

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  1. 1.The suit is dismissed with costs to the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over the ownership dispute relating to Plot No 18 Nthongoni Market

Relief refused

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A declaration that Plot No 18 Nthongoni Market is the sole property of the plaintiff

The court found the defendant procedurally obtained registration and the plaintiff is estopped from denying receipt of the full purchase price

p. 4

Kshs 215,000 with mesne profits or monthly rent of Kshs 15,000 or eviction of the defendant

The claim rested on an alleged non-payment of purchase price which the plaintiff failed to prove on a balance of probabilities

p. 4

Costs

The suit was dismissed with costs to the defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue infiuence are pleaded and proved.
p. 3Sanctity of contract
It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity's function to allow a party to escape from a bad bargain
p. 4Equity and bad bargains
Needless to state, it is manifestly clear that the defendant procedurally obtained registration of the suit property in his name.
p. 3Validity of the defendant's registration
The upshot is that the is suit herein is devoid of merit and is hereby dismissed with costs.
p. 4Final orders - dismissal of suit

Issues in the judgment

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minor

The pleading figure of Kshs 1,028,000 is internally inconsistent with the pleaded components (460,000 structures plus purchase price of 560,000 = 1,020,000, not 1,028,000)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Malii v Mukonzi (Environment & Land Case 87 of 2018) [2023] KEELC 45 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/45/eng@2023-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.