Waribu Chongo v Benson Maina Gathithi [2014] KECA 769 (KLR)

Although it was uncontested that the appellant planted the trees, the decisive question was on whose land they stood. The appellant relied on a valuer who could speak only to value. The report did not determine where the boundary lay, and the valuer's oral testimony contradicted the report by referring to parcel 299. No surveyor or registry evidence of beacons was tendered. The appellant therefore failed to discharge the legal burden on a balance of probability.

The valuer's written report did not emphatically state the trees stood on the appellant's land, and in cross-examination he stated the valued trees were on parcel Loc.8/Matharite/299, a different location. The court reasoned that where an author contradicts his own written report in oral testimony, the report loses evidential value and cannot discharge the burden of proof resting on the party who tendered it.

The court stated the trite maxim quicquid plantatur solo, solo cedit: the owner of land becomes owner of all objects permanently affixed or embedded thereto, regardless of who affixed them. In a conveyance or sale, all objects affixed at the time of the contract must be left for the purchaser unless otherwise agreed, citing Dibble Ltd v Moore. However, this principle did not avail the respondent because the factual question of location was unproven rather than the doctrine being applied outright to defeat the appellant.

The court framed its jurisdiction under section 72 of the Civil Procedure Act, which permits an appeal from every decree passed on appeal by the High Court only on grounds that the decision is contrary to law, failed to determine a material issue of law, or involved substantial procedural error possibly affecting the merits. The court confined itself to whether the High Court erred in law in its evaluation of the evidence on the boundary and location of the trees.