Anumo v Asoi & another (Environment and Land Appeal E010 of 2024) [2025] KEELC 5248 (KLR)
The bottom line
#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 learned trial Magistrate erred in validating/enforcing agreement for sale entered into dated 17th September 2017
- 2.Whether the learned Magistrate misdirected himself by not considering the provisions of sections 6, 7 and 8 of Land Control Act
- 3.Whether the Appellant is the registered owner of suit parcel number Uyoma/RagengnI/2062
- 4.Whether the appellants introduced new issues and evidences that were never pleaded in trial court without seeking leave of the court
- 5.What orders ought to issue
- 6.Who bears the costs of the Appeal and the case
Key legal issues
#Introduction of new issues and evidence on appeal
The appellants introduced new issues (capacity of the 2nd appellant and lack of Land Control Board consent) and documents (grant, certificate of confirmation, death certificate) that were never pleaded or canvassed at trial; the court declined to entertain them
The court reviewed the pleadings, submissions, proceedings and judgment of the trial court and found that neither capacity nor absence of LCB consent featured in the pleadings, evidence or submissions. The new documents annexed to submissions were not part of the trial record. Relying on David Sironga Ole Tukai v Francis Arap Muge, Kenneth Nyaga Mwige, Daniel Toroitich Arap Moi and Kenya Hotels Ltd v Oriental Commercial Bank, the court held parties are bound by their pleadings and submissions cannot substitute evidence.
Sections 6, 7 and 8 of the Land Control Act
The trial magistrate did not misdirect himself by not considering sections 6, 7 and 8 of the Land Control Act since the issue was never pleaded or raised at trial, and equity would not allow the defendants to defeat an admitted agreement after granting possession
Because the LCB consent issue was new on appeal, it fell away. The court further held that equity, elevated as a national value under Article 10(2)(b) of the Constitution and applicable via section 3(1) of the Judicature Act, would not permit parties to invoke the statute to defeat an agreement they admitted entering and under which they allowed possession.
Validity and enforceability of the agreement for sale dated 17th September 2017 and specific performance
The trial magistrate correctly found the agreement complied with section 3(3) of the Law of Contract Act and that specific performance was warranted, except that the size of the portion sold was never established by evidence
The court agreed with the trial court's application of the Reliable Electrical Engineers principles: the agreement was written, signed and witnessed; no undue influence was pleaded; and the plaintiff took vacant possession. However, the trial court's assumption that 0.4Ha was purchased was unsupported by evidence and the acreage issue required determination under sections 97, 98 and probably 71 of the Evidence Act, a matter for the trial court.
Legal principles established
#- A party cannot introduce new issues or evidence on appeal that were not pleaded or canvassed at trial without leave of the court; submissions cannot take the place of evidence
- It is unconscionable for parties who entered an agreement, admitted it and allowed possession to use the law (including lack of Land Control Board consent) to defeat that agreement
Court orders
#- 1.The judgment of the trial court dated 13/03/2024 is upheld subject to ascertainment of the portion of land occupied by the plaintiff pursuant to the agreement dated 17/9/2017
- 2.The matter is remitted to the Principal Magistrates Court at Madiany for determination on the singular issue of the exact size of the portion occupied by the plaintiff
- 3.No orders as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Madiany
- Madiany PMELC No. E009 of 2023
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act
Relief refused
#Setting aside of the trial court's judgment and dismissal of the suit in the lower court
The court upheld the trial judgment except on the issue of the size of the portion sold; new issues on capacity and Land Control Board consent were not entertained as they were not pleaded at trial
Costs of the appeal to the Appellant
The court made no orders as to costs
Costs
I make no orders as to costs of this appeal.
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.
The upshot of the foregoing is that the judgement of the trial court dated 13/03/2024 is hereby upheld subject to ascertainment of the portion of land occupied by the plaintifi pursuant to the agreement dated 17/9/2017.
Arising from the above the matter is hereby remitted to the Principal Magistrates Court at Madiany for purposes of a determination on the singular issue of the exact size of the portion occupied by the Plaintifi. I make no orders as to costs of this appeal.
it is the finding of this court that the appellants introduced new issues and evidences that were never pleaded in trial court without seeking leave of the court.
it is unconscionable for parties to enter an agreement which they admit to have entered into, allowed possession and then use the law to defeat the agreement. Equity is also law and will not sufier a wrong without a remedy.
Submissions can never take the place of evidence a position taken by the court in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR.
This being a first appeal the court is enjoined to re-evaluate the facts and the evidence that was led before the trial court and come up with its own conclusions.
Issues in the judgment
#The judgment refers to '2nd Appellant' when discussing capacity to sell, but the memorandum of appeal and parties as constituted on appeal describe the vendor as the 2nd Respondent, creating an internal inconsistency in party designation.
The judgment states oral highlighting of submissions occurred on '20/2023', an incomplete and inconsistent date given the appeal was filed in 2024.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anumo v Asoi & another (Environment and Land Appeal E010 of 2024) [2025] KEELC 5248 (KLR)", Case Analysis (2025). Madiany PMELC No. E009 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5248/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.