Mwangi v Kaurrai & another (Land Case Appeal E010 of 2025) [2026] KEELC 1854 (KLR)

The deceased's occupation was with the vendor's consent in anticipation of transfer, so no breach occurred at the 1995 agreement or payment. The breach occurred in 2019 when the 1st Respondent failed to honour the formal demand for transfer. The suit filed on 19th November 2020 was therefore within both the 6-year contract limitation and 12-year land recovery limitation. The trial magistrate's finding was factually and legally erroneous.

The burden lay on the Appellant under Sections 107, 108 and 109 of the Evidence Act. She was absent when the oral agreement was made and failed to call the alleged witness J.W. Wangombe or produce the original written agreement (only a police abstract). On a balance of probabilities, only the portion expressly admitted by the 1st Respondent was proven.

The deceased's entry was permissive with the vendor's consent and the vendor remained in concurrent occupation, defeating hostility and exclusivity. However, allowing the vendor to retain title to the portion he admitted selling, plus the purchase price and the deceased's permanent structures, would be gross unjust enrichment; equity therefore imposes a constructive trust over that portion only.

The defence was never pleaded in the amended statement of defence. Under the adversarial system parties are bound by their pleadings, and a new point on appeal would metamorphose the appellate court into a trial court and violate the Appellant's right to a fair hearing under Article 50. The Torino case was also distinguishable as it concerned a governmental allotment letter with explicit conditions.

The dispute was an action in personam arising from a private oral sale between the deceased and the 1st Respondent. No substantive orders were sought against the County Government, which was not privy to the contract. It was improperly and unnecessarily joined.