Daniel Murungi Mwirabua Anampiu v Jeremiah John alias Jeremiah Guantai & Another

2. Parcel No. 106, Old Kiare Land Adjudication Section (Parcel No. 106), belonged to the appellant, while Parcel No. 281 Old Kiare Land Adjudication Section (Parcel No. 281) belonged to the 1st Respondent. 3. By the judgment which has aggrieved the appellant leading to this appeal, the Environment and Land Court at Meru (ELC) (Mbugua, J.) decreed and ordered the appellant to transfer Parcel No. 106 to the 1st respondent and the 1st respondent to transfer Parcel No. 281 to the 2nd respondent, Bernard Muthaura M’Chokera. The ELC further directed the deputy registrar of the court to execute the necessary forms to effect the transfers, and awarded the respondents costs against the appellant. 4. The brief background to the appeal is as follows. On or about 30th November 2012, the appellant filed a suit against the 1st respondent for a declaration that he was the owner of Parcel No. 106; an order for eviction of the 1st respondent therefrom; a permanent injunction to restrain him from occupying or interfering with Parcel No. 106; costs and interest. 5. The appellant pleaded that in 1978, after serving a sentence Page 2 of 36

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of imprisonment for the offence respondent Page 3 of 36 of murder, the 1st

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requested him to accommodate him temporarily on Parcel No. 106 because he feared vengeance and revenge from the family of the person he had killed. The appellant acceded to the request, and in 1996, the 1 st respondent proposed to him that they exchange their parcels, but the appellant rejected the proposal and requested the 1st respondent to vacate Parcel No. 106, which he refused to do. 6. Subsequently, the 1st and 2nd respondents filed adjudication objections Nos. 41 and 42 against the appellant, claiming that the appellant and the 1st respondent had exchanged the two parcels of land. The objections were dismissed on 27 th February 2004, but the 1st respondent still refused to vacate Parcel No. 106. Accordingly, the appellant prayed for the reliefs we have already mentioned above. 7. On 23rd January 2013, the 1st respondent filed a defence and counterclaim. He denied the appellant’s claim and pleaded that in 1981, the parties verbally agreed to exchange their respective plots and effect the transfers later, but the appellant failed to honour the agreement. The 1st respondent pleaded fraud against the appellant, the particulars being failure to effect the transfer as agreed and abuse of his office Page 4 of 36

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as chief. Page 5 of 36

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8. The 1st respondent conceded having filed objections before the Land Adjudication Board, but argued that the purpose was to compel the transfer of the parcels in accordance with the exchange agreement and that there was no winner in the objection because the Board urged the parties to resolve their differences through an appeal. 9. By way of counterclaim, the 1st respondent pleaded that the parties exchanged their parcels permanently and that the appellant subsequently sold Parcel No. 281 to a third party. He prayed for a declaration that he was the owner of Parcel No. 106; a permanent injunction to stop the appellant from interfering with the said parcel; an order for the transfer of Parcel No. 106 in his name, and costs and interest. On 12 th June 2015, the 2nd respondent applied to be made a party to the suit on the ground that he had purchased Parcel No. 281 from the appellant. The ELC allowed the application on 29 th June 2015 and the 2nd respondent joined the suit as an interested party. 10. In his defence dated 28th August 2015, the 2nd respondent pleaded that he purchased Parcel No. 281 from the appellant in 1983, which the appellant misrepresented to be Parcel No. Page 6 of 36

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272 Kiare Settlement Scheme, and that he immediately took possession of Parcel No. 281 and has extensively developed the same. He averred that the purpose of the adjudication objections was to compel the appellant to transfer Parcel No. 106 to the 1 st respondent so that in turn, the 1st respondent would transfer Parcel No. 281 to him. Accordingly, the 2nd respondent prayed for dismissal of the appellant’s suit with costs. 11. Mbugua J. heard the suit and the appellant testified on his own behalf and called three witnesses, while the 1 st respondent also testified on his own behalf and called two witnesses, among them the 2 nd respondent. The ELC framed three questions for determination, namely: i) whether, in light of the dispute resolution mechanism provided in land adjudication, the ELC had jurisdiction; ii) whether the doctrines of constructive trust and proprietary estoppel were applicable in the case; and iii) what relief was available to the parties. Page 7 of 36

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12. By the judgment impugned in this appeal, the ELC found in the affirmative as regards the first issue. It held that the dispute resolution adjudication mechanisms concerns provided ascertainment of in land rights and interests in land and the recording and registration of such rights. However, the case before the court did not involve a dispute concerning determination or ascertainment of the rights and interests in land held under customary tenure, but a dispute on exchange of land between owners whose rights were already determined and settled under the adjudication process. 13. On the second issue, the court held that the appellant and the 1st respondent had exchanged their respective parcels; that the 1st respondent had occupied Parcel No. 106 for over 40 years; and that he had the right to that parcel under the doctrines of equitable estoppel and constructive trust. 14. On the last issue, the court found in favour of the respondents and issued the orders we have already referred to. 15. The appellant was aggrieved and lodged this appeal, in Page 8 of 36

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which he contends that the ELC erred by holding: Page 9 of 36

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i. that the appellant and the 1st respondent exchanged their respective parcels of land; ii. that the agreement between the appellant and the 2nd respondent was a valid agreement; iii. that it had jurisdiction to hear and determine the suit; and iv. that the doctrines of proprietary estoppel and constructive trust were applicable in the case. 16. In support of the appeal, Mr. Mutegi, learned counsel for the appellant, relied on written submissions dated 16 th October 2025 and submitted, as regards the first ground of appeal, that the respondents did not prove the alleged agreement to exchange Parcels Nos. 106 and 281. Counsel contended that no evidence of the agreement was adduced, in particular of the date and the particulars of the agreement, and that the 1st respondent’s witnesses merely stated what they had been told, which was inadmissible hearsay evidence. While conceding that the evidence on the record shows that the 1 st respondent had been in possession of Parcel No. 106 for a long time, he argued Page 10 of 36

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that the possession did not translate to ownership and that the 1st respondent was a mere licensee of the appellant. Page 11 of 36

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17. Turning to the second ground of appeal, counsel submitted that the sale agreement between the appellant and the 2nd respondent dated 6th May 1983 was not attested by any witness as required by section 3(3) of the Law of Contract Act. He added that the cause of action founded on the agreement was statute-barred by virtue of section 4 of the Limitation of Actions Act. It was counsel’s further submission that the 2 nd respondent had not filed a counterclaim to enforce the agreement and that, in any case, the agreement related to sale of Parcel No. 272 belonging to Philip M’Itheria, rather than Parcel No. 281 which belonged to the 1st respondent, and that the appellant could not sell a property that he did not own. 18. Next, counsel addressed the ground of appeal on jurisdiction, which ideally ought to have been the first ground of appeal. He submitted that the parcels in dispute were within the Old Kiare Land Adjudication Section and were thus the subject of an adjudication process. He contended that before completion of adjudication and registration of the parcels under the Land Registration Act, 2012, the 1st respondent could not maintain any proprietary claims over the parcels. Counsel added that Page 12 of 36

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the respondents filed objections Nos. 41 and 42, which were dismissed under section 29(1) of the Land Adjudication Act, and subsequently they lodged appeals with the Minister, which were still pending at the material time. It was his view that so long as the adjudication process was ongoing, there was no basis for judicial intervention in the dispute and that the ELC erred to intervene. In support of the submission, counsel relied on the decision of the High Court in Tobias Achola Osindi & 13 Others v. Cyprianus Otieno Ogalo & 6 Others [2013] KEHC 2165 (KLR). 19. It was counsel’s further submission that by dint of section 26(1) of the Land Adjudication Act, it was the Adjudicating Officer and the Land Adjudication Committee, rather than the court, who had jurisdiction to determine adjudication claims, and that a party aggrieved by their determination had a right of appeal to the Minister. He cited the decisions of this Court in Speaker of the National Assembly v. Karume [1992| KLR 21 and Geoffrey Muthinja Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others [2015] KECA 304 (KLR), and contended that parties were Page 13 of 36

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obliged to adhere strictly to the procedures prescribed by the Land Adjudication Act for dispute resolution. 20. Lastly, on the doctrines of proprietary estoppel and constructive trust, the appellant relied on Thorner v. Major & Others [2009] UKHL 18, and submitted that to establish proprietary estoppel, the 1st respondent was obliged to prove that the appellant had made a representation or assurance to him; that he relied on the representation or assurance and that as a result of the reliance, he suffered a detriment. It was submitted that the 1st respondent neither pleaded proprietary estoppel nor proved the same and therefore the ELC erred by determining unpleaded issues. 21. As regards constructive trust, the appellant submitted that it was similarly neither pleaded nor proved. He relied on the decisions of this Court in Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR and William Kipsoi Sigei v. Kipkoech Arusei & Another [2019] eKLR, and submitted that to succeed under constructive trust, the 1st respondent was required to prove common intention between the parties, which he relied or acted Page 14 of 36

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upon. In the appellant’s view, the 1 st respondent did not prove those Page 15 of 36

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elements since he took possession of Parcel No. 106 as a licensee. 22. For the foregoing reasons the appellant urged the Court to allow the appeal with costs. 23. The 1st respondent, represented by Ms. Gikundi, learned counsel, opposed the appeal on the basis of written submissions dated 12th June 2025. Counsel submitted that the respondents adduced sufficient evidence to prove that the appellant and the 1st respondent exchanged Parcel Nos. 106 and 281; that subsequently the appellant sold to the 2nd respondent a parcel of land which he physically identified to him as Parcel No. 281; that from that time the 1st respondent had been in possession of Parcel No 106, the 2nd respondent in possession of Parcel No. 281 and that the appellant was not in possession of any parcel because he had sold Parcel No. 281 to the 2nd respondent. 24. As regards the verbal agreement to exchange the parcels of land, counsel submitted that oral agreements are valid and enforceable if they meet the essential elements of a contract and the terms are proved to the required standard. In support, she relied on the decision of the High Page 16 of 36

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Court in Page 17 of 36

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Patrick Njuguna Kimondo v. Geoffrey Vamba Mbuti [2019] KEHC 9676 (KLR) and of this Court in Attorney General v. Kabuito Contractors Ltd [2023] KECA 230 (KLR). 25. Regarding the Law of Contract Act, counsel submitted that the requirement that all dispositions of interests in land must be in writing applies after 1 st June 2003 and does not affect the agreements entered into before that date, like the agreements involved in this appeal. It was contended that the oral agreement between the appellant and the 1st respondent to exchange their respective parcels of land was entered into in 1977, while the agreement between the appellant and the 2nd respondent for the sale of Parcel No. 281 was in writing and entered into on 6th May 1983. In support of the proposition, counsel relied on the decision of this Court in Peter Mbiri Michuki v. Samuel Mugo Michuki [2014] eKLR. 26. Turning to the doctrines of proprietary estoppel and constructive trust, counsel submitted that the evidence on record indicated that for a long time the 1st respondent and the 2nd respondent were in actual possession of Page 18 of 36

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Parcel No. Page 19 of 36

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106 and Parcel No. 281, respectively, a fact which was also confirmed by the site visit conducted during the hearing of the Land Adjudication objections. Counsel cited the decision of this Court in Twalib Hatayan & Another v. Said Saggar Ahmed Al-Heidy & 5 Others [2015] eKLR and submitted that a constructive trust is an equitable remedy imposed by law and arises where the circumstances of the case are such as would demand that equity treats the legal owner of land as trustee. She also relied on Yaxley v. Gotts [2000] Ch. 162 and submitted that the 1st respondent was entitled to claim Parcel No. 106 under proprietary estoppel. 27. It was counsel’s further submission that the 1st respondent’s interest in and possession of Parcel No. 106 constituted an overriding interest under section 28 of the Land Registration Act, 2012. In support, the decision of this Court in Macharia Mwangi Maina & 87 Others v. Davidson Mwangi Kagiri [2014] eKLR was cited. The 1st respondent submitted that there was no basis for the appellant’s contention that he occupied Parcel No. 106 as a licensee. 28. The 1st respondent concluded by submitting that the ELC Page 20 of 36

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reached the correct decision by dismissing the appellant’s suit Page 21 of 36

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and allowing the 1st respondent’s counter-claim so as to actualise what the parties had agreed and effected on the ground by exchanging and taking possession of the parcel. He urged the Court to dismiss the appeal with costs. 29. Last but not least, we heard Ms. Mugo for the 2nd respondent. Relying on written submissions dated 28 th February 2024, counsel submitted that the ELC had jurisdiction to deal with the appellant’s suit because under the Land Adjudication Act, the jurisdiction of the Adjudication officer is to deal with claims relating to ascertainment and recording of interests and interests over land in an adjudication area. However, the dispute at hand did not involve any adjudication claim, but involved the question whether the appellant and the 1st respondent had exchanged their parcels. It was submitted that it was because the dispute did not fall within his jurisdiction that the Land Adjudication officer told the parties to pursue their dispute in court. 30. As regards proprietary estoppel and constructive trust, the 2nd respondent submitted that the evidence on record including from the site visit conducted by the Land Adjudication Officer shows that the 2nd respondent had Page 22 of 36

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been Page 23 of 36

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in occupation of Parcel No. 281 since 1983 when he purchased it from the appellant, while the 1 st respondent was in occupation of Parcel No. 106. It was contended that in the circumstances, the Law of Contract Act did not bar the ELC from finding a constructive trust. In support the 2nd respondent relied on Twalib Hatayan & Another v. Said Saggar Ahmed Al-Heidy & 5 Others (supra). It was also the 2nd respondent’s contention that his possession of Parcel No. 281 constituted an overriding interest within the meaning of section 28 of the Land Registration Act, 2012. In support of the proposition, he relied on Macharia Mwangi Maina & 87 others v. Davidson Mwangi Kagiri (supra). 31. For the foregoing reasons, the 2nd respondent urged the Court to dismiss the appeal with costs. 32. We have carefully considered the judgment of the ELC, the memorandum of appeal, the record of appeal, the submissions by the parties, the authorities they cited, and the law. We shall address the issues raised by the appellant, but starting with the question of jurisdiction, because, if we find that the ELC did not have jurisdiction to Page 24 of 36

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entertain the dispute, then it would serve no purpose to delve into the other grounds. Page 25 of 36

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33. The appellant’s contention, as regards jurisdiction, is that to the extent that the parcels in dispute were in an adjudication section, they were subject to the adjudication process and that by dint of section 26(1) of the Land Adjudication Act, it was the Land Adjudication Officer and the Land Adjudication Committee, rather than the ELC, who had jurisdiction in dispute resolution. Further, that an aggrieved party is obliged to strictly follow the dispute resolution mechanism prescribed by the law. 34. It cannot be gainsaid that where the Constitution or a statute prescribes a clear procedure for redress of a grievance, that procedure must be strictly followed and the court will not readily entertain a claim made in disregard to the prescribed procedure. In Mutanga Tea & Coffee Company Ltd. v. Shikara Limited & Another [2015] eKLR, this Court held as follows: “We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative Page 26 of 36 dispute resolution

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mechanisms and Page 27 of 36

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afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts.” 35. Similarly, in Albert Chaurembo & 7 Others v. Maurice Munyao & 148 Others [2019] eKLR, the Supreme Court held that: “…even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.” (See also Speaker of the National Assembly v. Karume [1992] KLR 21). 36. The only exception, as recognised by the Supreme Court in Abidha Nicholus v. Attorney General & Others, Pet. No. 16 of 2019, is where the reliefs provided by the prescribed dispute resolution mechanisms are not Page 28 of 36 adequate or

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efficacious. Even then, the issue is whether the court should assume jurisdiction is determined on a case-bycase basis. 37. Turning to the present appeal, section 26 of the Land Adjudication Act provides for objections to the adjudication register. The provision reads as follows: 26 (1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may , within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete. (2) The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection. (Emphasis added). 38. Section 28 of the same Act provides for the right of appeal to the Minister by any person aggrieved by the determination of an objection under section 26. The appeal is to be made within 60 days, and the decision of the Minister is final. Section 30 of the Act bars courts from Page 29 of 36

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entertaining any civil proceedings concerning an interest in land in an adjudication Page 30 of 36

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section until finalisation of the adjudication register. The only way a party may approach the Court under section 30 of the Act is by obtaining prior consent in writing from the Adjudication Officer. 39. The kind of disputes contemplated to be heard and determined by the adjudication officer under section 26 are disputes concerning the completeness or correctness of the register. In this case, there was no dispute that for purposes of adjudication and following the adjudication process, Parcel No. 106 was assigned and registered in the name of the appellant while parcel No. 281 was assigned and registered in the name of the 1st respondent. None of those parties was alleging any error, mistake or incompleteness in the register as regards their registration as owners of the respective parcels. The dispute was over whether subsequently the parties had exchanged their respective parcels as assigned to them in the adjudication register. With respect to the appellant, those were two different issues and there was nothing in the statute that barred the ELC from entertaining the dispute regarding whether the parties had exchanged their respective plots. Page 31 of 36

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40. That view finds further support in the manner in which the Adjudication Officer dealt with the parties’ objection which was raised before him. He correctly, in our view, held that the dispute did not fall within his jurisdiction, and instead advised the parties to pursue an appeal. 41. Although it is first principle that parties cannot confer jurisdiction upon a court by consent or conduct, the irony is not lost to us that the appellant, who claims that the ELC did not have jurisdiction, is actually the same party who filed his claim before the ELC. Accordingly, we find that the ELC did not err in holding that it had jurisdiction to entertain the dispute and that there is absolutely no merit in the appellant’s contention otherwise. 42. The next ground of appeal that we shall consider is the appellant’s contention that the verbal agreement between the appellant and the 1st respondent and the agreement for sale between the appellant and the 2 nd respondent were unenforceable for non-compliance with section 3 of the Law of Contract Act, Cap 23. As regards the verbal agreement for exchange of the parcels, the appellant’s contention was that it was unenforceable because it was not in writing, and Page 32 of 36

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as regards the agreement for sale, it was contended that it was not attested as required. 43. Section 3 of the Law of Contract presently requires, in mandatory terms, that all contracts or agreements for disposition of an interest in land to be in writing. The provision provides as follows: “(3) No suit shall be brought upon a contract for the disposition of an interest in land unless— (a) the contract founded— (i) upon which the suit is is in writing; (ii)is signed by all the parties thereto; and (b)the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.” 44. The above provision of section 3 of the Act was introduced by the Statute Law (Miscellaneous Amendments) (No. 2) Act, 1990, No. 21 of 1990. Page 33 of 36

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That Act came into effect on 18th Page 34 of 36

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January 1990. While it is true, therefore, that an oral agreement that satisfies the essentials of a contract is valid and enforceable, that is not the case as regards an agreement for disposition of an interest in land. Such an agreement must presently and by statutory edict, be in writing. A valid and enforceable agreement for the transfer of an interest in land cannot be oral; it must be in writing by dint of section 3 of the Law of Contract Act. 45. However, there are a few issues that must be borne in mind regarding the history and evolution of section 3 of the Law of Contract Act. Before the 1991 amendment, section 3 of the Act did not automatically render invalid an agreement for disposition of interest in land if it was not in writing. What that simply means is that at the time the appellant and the respondents entered into their respective agreements, section 3 of the Law of Contract Act did not provide the same as it does today. Whether or not the contracts in this appeal are enforceable under the Law of Contract Act must therefore depend on the actual wordings of the Act at the material time. This is because section 3(7) of the Law of Contract Act as it stands today expressly provides that section 3 as amended Page 35 of 36

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does not apply to transactions preceding it. The actual words provide thus: “3 (7) The provisions of subsection (3) shall not apply to any agreement or contract made or entered into before the commencement of that subsection.” 46. Indeed, even without regard to section 3(7), section 3 as it stands today cannot apply to transactions that took place in the 1980s, simply because the present amendment cannot be applied retrospectively to void or affect rights that may have crystallised. (See Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR). 47. The evidence of the respondents which was accepted by the ELC was that the exchange agreement between the appellant and the 1st respondent was in 1981, while the sale agreement between the appellant and the 2nd respondent was in 1983. Prior to the 1990 amendment, section 3 of the Act provided as follows: “(3) No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is Page 36 of 36

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signed by the party Page 37 of 36

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to be charged or by some person authorized by him to sign it: Provided that such a suit shall not be prevented by a reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract(i) has in part performance of the contract taken possession of the property or any part thereof; or (ii)being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract.” 48. Under the Act as it then stood, agreements for disposition of an interest in land that were not in writing were still valid by dint of the proviso to section 3 so long as a party had taken possession of the property in part performance of the agreement. another See Arumba v. Mbega & [1988] KECA 91 (KLR);Rubo Kipngetich Arap Cheruiyot v. Peter Kiprop Rotich [2013] KECA 188 (KLR); Peter Mbiri Michuki v. Samuel Mugo Michuki [2014] KECA 342 (KLR) and Margaret Wairimu Warima v. Phylis Wanjiru Thairu & 2 Others [2017] KECA 712 (KLR). Page 38 of 36

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49. In this case, there is overwhelming evidence, including concession by the appellant himself, that the 1 st respondent took possession of Parcel No 106 while the 2 nd respondent took possession of Parcel No. 281 and that they have been in possession and occupation since then. Accordingly, there is no merit in the appellant’s contention that the two agreements were unenforceable by virtue of section 3 of the Law of Contract Act. 50. The next issue is whether the ELC erred in holding that the appellant and the 1st respondent had exchanged their respective parcels. In his evidence before the ELC, the appellant testified that he was the owner of Parcel No. 106 while the 1st respondent was the owner of Parcel No. 281. He testified further that in 1975, the 1 st respondent fought with a person called Taribo, who died. The 1st respondent was charged with the offence of murder, convicted and jailed. In 1978, after serving his sentence, he requested the appellant to accommodate him on Parcel No. 106 because he was afraid of retribution from Taribo’s kin. 51. The appellant readily acceded that the appellant has since been in occupation of Parcel No. 106. According to the Page 39 of 36

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appellant, in 1996 the 1 st respondent suggested that they exchange their parcels, but the 1 st respondent disappeared and the parties never exchanged the parcels. It was his evidence that there was no written agreement regarding the exchange of the parcels. 52. The appellant denied having sold Parcel No. 281 to the 2 nd respondent. It was his evidence that he sold to the 2nd respondent Parcel No. 272 on behalf of the owner, Philip M’Ithiria. The purchase price was Ksh. 17,000.00, which the 2nd respondent duly paid. He produced the agreement for sale as an exhibit. He, however, admitted that he never told the 2nd respondent that Parcel No. 272 belonged to Philip M’Ithiria. Subsequently, the agreement fell through, and he gave the purchase price to his advocate to refund to the 2nd respondent, who failed to collect the same. 53. PW2, Francis M’Akotha M’Minyori testified that Parcel No. 106 belonged to the appellant but he did not know the 1st and the 2nd respondents’ parcels. He did not know who was in occupation of Parcel No. 106 at the time he testified, but the 1st respondent had built and occupied the same from the Page 40 of 36

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1970s. He was not aware whether the appellant sold any land to the 2nd respondent. 54. Joseph Mwania Chokera (PW3) confirmed that Parcel No. 106 belonged to the appellant but was occupied by the 1 st respondent. He did not know the circumstances under which the 1st respondent entered parcel No. 106 and was not aware whether the appellant had sold land to the 2 nd respondent. 55. The evidence of PW4, M’Matia M’Akwake M’Aruaki, was that Parcel No. 281 belonged to the appellant. He did not know its location on the ground nor did he know the 1 st respondent or about Parcel No. 106. 56. Turning to the 1st respondent’s case, he testified that he agreed verbally with the appellant to exchange their parcels of land and that he entered into Parcel No. 106 in 1981, while the appellant took Parcel No. 281. He admitted that he had filed a land adjudication objection which was dismissed on a technicality because it was wrongly filed. He testified that he did not know about Parcel No. 272. 57. On his part, the 2nd respondent testified that in 1983 he Page 41 of 36

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bought from the appellant land identified as Parcel No 272, Page 42 of 36

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which the appellant represented as his own land. However, the land he was shown on the ground by the appellant was Parcel No. 281, which he still occupies while the 1st respondent occupies Parcel No 106. He later learnt that Parcel No 272 did not belong to the appellant. He produced in evidence the agreement for sale dated 6 th May 1983. 58. The 2nd respondent’s other witness was Patrick Mithika Amboka, who confirmed that the 2 nd respondent was in occupation of Parcel No. 281, which belonged to the 1 st respondent, while the 1st respondent was in occupation of Parcel No. 106, which belonged to the appellant. He testified that the appellant had informed him that he had exchanged his parcel with that of the 1st respondent and then sold Parcel No. 281 to the 2nd respondent. 59. It is the appellant’s contention that the evidence we have set out above did not prove exchange of Parcels Nos. 106 with 281 between the appellant and the 1 st respondent or sale of Parcel No. 281 by the appellant to the 2 nd respondent. 60. The ELC was called upon to determine whether the Page 43 of 36

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appellant had proved on a balance of probabilities that he did not exchange with the 1st respondent Parcels No. 106 for Parcel Page 44 of 36

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No. 281 and that he did not sell Parcel No. 281 to the 2 nd respondent. The evidence on record shows that both the 1st respondent and the 2nd respondent have been in occupation of Parcel Nos. 106 and 281, respectively, from the early 1980s. The ELC, which had the opportunity of seeing and hearing the witnesses as they testified and observing their demeanour, preferred the evidence of the 1st and 2nd respondent to that of the appellant. 61. In our view, there are serious credibility questions about the evidence of the appellant, which makes us agree with the conclusion of the learned judge. First, the appellant could not explain why he had allowed the 1 st respondent to occupy Parcel No. 106 for so long without any objection, if indeed there was no agreement to exchange their respective parcels. It is readily apparent that from the evidence of status of the parties then, the respondents could not have duped or taken advantage of the appellant who was the area chief. From the evidence the 1 st respondent was a teacher and the 2nd respondent a councillor. 62. Secondly, although he agreed that he sold Parcel No. 272 belonging to Philip M’Ithiria to the 2nd respondent, he Page 45 of 36

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conceded that he did not disclose to him that the land he was selling was not his. Thirdly, the appellant also did not explain how the 2nd respondent came to occupy Parcel No. 281, if indeed he was not the one who put him into possession. It was not plausible for the 2 nd respondent to arbitrarily settle on Parcel No. 281, the property of a total stranger, without the active involvement of the appellant. 63. Moreover, for reasons best known to himself, the appellant did not call a very critical witness, namely the said Philip M’Ithiria, to shed light on the circumstances under which the appellant purported to sell Parcel No. 272 without any disclosure that it was not his property. Accordingly, the conclusion of the trial court that the appellant purported to sell Parcel No. 272 to the 2nd respondent but instead put him in possession of Parcel No. 282 is quite plausible. 64. This Court has consistently held that on matters of demeanour and credibility of witness, it will not readily interfere with the conclusion of the trial court. In Susan Munyi v. Keshar Shiani CA. No. 38 of 2002 this Court expressed itself as follows: Page 46 of 36

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“As a first appellate court our duty of course is to Page 47 of 36

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approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinise all of the evidence and arrive at our own independent conclusions. In undertaking this task, however, we always bear in mind that unlike the trial court which had the advantage of hearing and observing the witnesses, we make our conclusions from the evidence as captured in the cold letter of the record. We therefore operate under a decided handicap as there is much to be gleaned from the demeanour and nuanced communication of a live witness that is inevitably unavailable, indeed lost, on the record. For precisely this common sense reason, an appeal court must accord due respect to the factual findings of the trial court and will be circumspect and slow to disturb them.” (Emphasis added). 65. Accordingly, it is our conclusion that the appellant did not prove on a balance of probability that he did not exchange Parcel No. 106 with the 1st respondent, and further, that he did not prove that he did not sell parcel No 281 to the 2nd respondent. In the circumstances, there is no basis for interfering with the finding of the ELC in that regard. Page 48 of 36

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66. The last issue is whether the ELC erred in holding that the doctrines of proprietary estoppel and constructive trust were applicable in the case. The short answer to that contention is that none of the parties pleaded proprietary estoppel or constructive trust. We have carefully considered the record of appeal and find that neither the appellant nor the 1st respondent raise or addressed the issues of proprietary estoppel or constructive trust. Those issues were sneaked in by the 2nd respondent in his submissions dated 16th September 2019. Such issues required to be pleaded, not raised surreptitiously in submissions. It was therefore, improper for the ELC to determine matters which had not been pleaded or addressed by all the parties. 67. Decisions abound of our courts that emphatically state that the court cannot determine issues that have not been pleaded or raised and addressed by the parties. In Odinga & Another v. IEBC & 2 Others [2017] KESC 31 (KLR) the Supreme Court quoted with approval the following words of the Supreme Court of India in Reddy v. Venkata Ram Reddy Rddygari & Another, [2014] 2 SCR: Page 49 of 36

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“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…” 68. Similarly, in David Sironga ole Tukai v. Francis arap Muge & 2 Others [2014] KECA 155 (KLR) this Court held as follows: “It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to Page 50 of 36

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formulate its own case in its own way. And it is for the purpose of certainty and finality that Page 51 of 36

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each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense. The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.” See also IEBC & Another v. Mule & 3 Others [2014] KECA 890 (KLR). 69. The appellant also contended that the ELC erred because the agreements were statute-barred under the Limitation of Actions Act. We need not belabour this point because it Page 52 of 36

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was Page 53 of 36

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the appellant who filed the suit seeking recovery of the parcels, which suit was, in any event, dismissed for lack of merit. We also need not deal with the contention by the respondents that their respective possessions of Parcel Nos. 106 and 281 constituted overriding interests, for the reason that the issue of overriding interests was never pleaded or raised before the ELC and that court did not determine the same. The issue cannot be raised for the first time on appeal. 70. Ultimately, we have come to the conclusion that although the ELC erred by determining the issues of constructive trust and proprietary estoppel which were not pleaded, nevertheless, it reached the correct conclusion that the appellant had failed to prove that he had not exchanged Parcel Nos. 106 and 281 with the 1st respondent and that he had not sold Parcel No. 281 to the 2nd respondent. Equally, the ELC was correct in holding that the agreement for exchange of the parcels, as well as the agreement for sale of Parcel No. 281, were valid and enforceable because the current provisions of section 3 of the Law of Contract Act did not apply to them. Page 54 of 36

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71. Accordingly, we find that this appeal has no merit and the same is hereby dismissed with costs to the 1 st and 2nd respondents. It is so ordered. Dated and delivered at Nyeri this 25 thday of September, 2026. K. M’INOTI ……………………………… JUDGE OF APPEAL S. ole KANTAI ……………………………… JUDGE OF APPEAL A. ALI-ARONI …………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 55 of 36

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