Kirui v Metet & 12 others (Environment and Land Appeal E007 of 2024) [2026] KEELC 134 (KLR)
The bottom line
#A Kericho land seller who failed to prove his limitation defence at trial lost his appeal outright, confirming buyers who paid and took possession keep the land.
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 failing to consider and find that the suit was statute barred and therefore orders of specific performance could not be issued.
- 2.Whether the Learned Trial Magistrate erred in failing to consider Section 3(3) of the Law of Contract Act.
- 3.Whether the Learned Trial Magistrate erred in failing to consider that some of the agreements had been rescinded and money refunded to the Respondents.
- 4.Whether the Learned Trial Magistrate erred in failing to find that some of the Respondents did not have a valid cause of action against the Appellant.
- 5.Whether the Learned Trial Magistrate erred in hearing the matter and yet he had no jurisdiction.
- 6.Who should bear costs of the appeal.
Key legal issues
#Whether the Respondents' suit was statute barred
Grounds one and two failed; the Appellant led no evidence at trial to substantiate the plea of limitation, and the plea as against the 3rd, 4th and 5th Respondents was being raised for the first time on appeal.
The Appellant pleaded limitation only against the 1st, 2nd, 6th, 7th, 8th, 9th, 10th and 13th Respondents and adduced no evidence at trial on the point. The plea against the 3rd, 4th and 5th Respondents was new on appeal and the court declined to entertain it, citing the rule restricting appellate courts to issues canvassed before the trial court. Limitation must be pleaded and proved on evidence at trial.
Whether the agreements complied with Section 3(3) of the Law of Contract Act
The trial magistrate had expressly considered and found the agreements valid; the Appellant did not identify with specificity which agreements failed to comply, so ground three failed.
The trial court had considered the written, signed and witnessed handwritten agreements and found they conformed to Section 3(3). On appeal, the Appellant merely asserted that 'many' agreements were non-compliant without specifying them. The court held nothing would have been easier than to set out the specific agreements that failed the statutory requirements.
Whether the agreements with the 1st and 2nd Respondents were rescinded
The ground failed; rescission requires the other party's default and notice, and the 1st and 2nd Respondents were not in default; the returned cheques did not amount to rescission.
The evidence showed the 1st and 2nd Respondents paid the full purchase price, took possession, and were not in default. The Appellant's attempt to refund the purchase price by cheques was rejected by the Respondents. Rescission lies only where the party not in default gives notice to a defaulting party; the Appellant could not rescind agreements where he himself failed to transfer the land.
Whether the trial court had jurisdiction
The ground failed; although jurisdiction can be raised at any stage, the Appellant's jurisdictional challenge rested entirely on limitation, which he had failed to prove.
The court accepted, citing Adero v Ulinzi Sacco, that jurisdiction may be raised even on appeal. However, since the Appellant's argument that the trial court lacked jurisdiction was premised on the claim being statute barred, and the court had already found no evidence supported the limitation plea, the jurisdictional ground necessarily failed.
Whether some Respondents had no valid cause of action
This ground failed as it rested on the limitation, Section 3(3) and rescission arguments already rejected.
The Appellant's contention that some Respondents lacked a cause of action was founded on the same three arguments - limitation, non-compliance with Section 3(3), and rescission - which the court had already found to lack merit. The ground was therefore repetitive and failed.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, making due allowance for not having seen or heard the witnesses.
- A party cannot raise a new issue on appeal that was not raised before the trial court.
- Allegations in pleadings unsupported by evidence have no probative value.
- The defence of limitation is a matter for determination at trial on evidence adduced, not summarily or by preliminary objection.
- Jurisdiction can be raised at any stage of the proceedings, including on appeal.
- Rescission of a contract requires that one party be in default and that the party not in default give notice to perform before rescinding.
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the Learned Trial Magistrate delivered on 13th June, 2024 in Kericho CM ELC Case No. 5 of 2019 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kericho
- Kericho CM ELC Case No. 5 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters
Relief refused
#Setting aside the judgment and decree of the Learned Magistrate
The appeal lacked merit; no evidence was adduced to substantiate the claim that the Respondents' suit was statute barred
A finding that the claims of the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 13th Respondents were statute barred
The Appellant failed to adduce any evidence at trial in support of the contention, and could not raise a new issue on appeal not raised before the trial court
Allowance of the Appellant's Counterclaim for vacant possession, eviction and permanent injunction
The trial court had dismissed the Counterclaim, finding the agreements with the 1st and 2nd Plaintiffs were not rescinded
Costs
The appeal is dismissed with costs; the Respondents are awarded costs of the appeal (and had been awarded costs of the suit and Counterclaim by the trial court).
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.
In the result, I find that this appeal lacks merit. It is hereby dismissed with costs.
It is so ordered.
Since the Appellant did not raise the issue of whether or not the 3rd, 4th and 5th Respondents suit was statute barred before the trial Court, he is precluded from raising it on appeal.
My view is that said assertions remained to be unsubstantiated claims with no probative value.
I find that the sale agreements between the 1st Defendant and all the Plaintifis conformed to the above requirements and are valid and enforceable contracts of sale of land.
And jurisdiction is such an important matter that it can be raised at any stage of the proceedings and even on appeal.
Rescission arises where one party in a contract is in default. The party which is not in default gives notice to the party in default to perform the contract. On the failure to so perform the contract is then rescinded.
The general rule is that costs shall follow the event. This is in accordance with the Provisions of Section 27 of the Civil Procedure Act (Cap. 21).
Issues in the judgment
#The judgment's quotation of the trial court's judgment contains an internal inconsistency: it refers to 'the contracts in respect to the 1st and 2nd Defendants' where the context indicates Plaintiffs were meant
The Appellant's list of Respondents whose claims were said to be statute barred shifts between the pleading and submissions on appeal without explanation
The Respondents' submissions regarding jurisdiction refer to claims by the '1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th Respondents' while elsewhere the same list runs to the 13th Respondent, suggesting a typographical inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui v Metet & 12 others (Environment and Land Appeal E007 of 2024) [2026] KEELC 134 (KLR)", Case Analysis (2026). ELC Appeal dated 28th June, 2024 (from Kericho CM ELC Case No. 5 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/134/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.