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Court of AppealDismissedCivil Appeal No. 19 of 2015

Isca Adhiambo Okayo v Kenya Women Finance Trust [2016] KECA 603 (KLR)

Court of Appeal of Kenya
21 April 2016
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a woman's claim against Kenya Women Finance Trust because she could not prove the people who seized her property were the bank's agents.

What this practically means

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Executive summary

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This is a second appeal from the High Court at Homa-Bay (Majanja, J.), which had on 18th December 2014 set aside a Magistrate's court judgment awarding the appellant Kshs.33,000.00, return of 1700 matts, general damages of Kshs.100,000.00, interest and costs. The claim arose from an incident of 23rd February 2012 in which the appellant alleged that officers of the respondent, Kenya Women Finance Trust, wrestled her to the ground, took Kshs.33,000.00 from her purse and removed 1700 matts from her business premises, purportedly to recover a loan extended to her co-wife which she had allegedly guaranteed. The Magistrate's court found in her favour; the High Court reversed, holding the appellant failed to establish her case in accordance with Section 107(1) of the Evidence Act because she did not identify the persons who attached the property. The Court of Appeal, in a single unanimous judgment of the court (Maraga, Musinga and Gatembu, JJ.A.), framed the sole question as whether the High Court's finding under Section 107(1) was well founded. Re-appreciating the testimony of the appellant and her three witnesses, including the area chief, the court found no evidence on a balance of probabilities that the culprits were employees, servants or authorized agents of the respondent. It observed that the appellant could have established registration numbers of the motorcycle and vehicle to link them to the respondent. The court affirmed the High Court decision and dismissed the appeal with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court was right in holding that the appellant failed to establish her case in accordance with Section 107(1) of the Evidence Act
  2. 2.Whether the appellant discharged the burden of proving, on a balance of probabilities, that the persons who attached her property were employees, servants or authorized agents of the respondent

Key legal issues

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01

Whether the appellant discharged the burden of proof under Section 107(1) of the Evidence Act

Holding

The Court of Appeal affirmed the High Court's finding that the appellant failed to prove, on a balance of probabilities, that the persons who attached her property were employees, servants or authorized agents of the respondent, and that the High Court correctly found the respondent discharged its evidential burden.

Reasoning

The Court reviewed the testimony of all four prosecution-side witnesses and found the evidence did not establish the identity of the culprits as agents of the respondent. The appellant initially said she did not know the people, then described shifting accounts; PW2 and PW3 did not assist on identification; the Chief arrived after the fact. The Court noted the appellant could have established registration numbers of the motorcycle and vehicle to connect them to the respondent. The evidence supported the suggestion that members of the women's group, not the respondent, may have carried out the attachment.

p. 4

Legal principles established

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  • A party who desires a court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist; failure to identify the persons allegedly acting for a defendant, where it was possible to do so, means liability has not been established.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Homa-Bay
HCC Appeal No. 9 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework (the judgment does not cite a specific provision; it is a second appeal from the High Court)

Relief refused

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The appellant's appeal against the High Court's setting aside of the Magistrate's court judgment (Kshs.33,000.00, return of 1700 matts, general damages of Kshs.100,000.00, interest and costs)

There was no evidence on a balance of probabilities that the culprits were employees, servants or authorized agents of the respondent

p. 4

Costs

The appeal is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
p. 2Burden of proof - Section 107(1) Evidence Act
there was no evidence, on a balance of probabilities, to support the finding that that the culprits who “trespassed” into the appellant’s person or premises were “employees, servants and or authorized agents” of the respondent so as to found liability on the part of the respondent
p. 4Failure to prove agency/identification of tortfeasors
It would, perhaps, have been useful for the appellant to establish the registration numbers of the motorcycle and the vehicle and to establish a connection with the respondent.
p. 4Evidentiary means of linking actors to an institution
Accordingly, the appeal is devoid of merit. It is dismissed with costs to the respondent. Orders accordingly.
p. 4Final orders - dismissal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isca Adhiambo Okayo v Kenya Women Finance Trust [2016] KECA 603 (KLR)", Case Analysis (2016). Civil Appeal No. 19 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/603/eng@2016-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.