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Court of AppealDismissedCivil Appeal No. 24 of 2016· [2018] KECA 665 (KLR)

James Kiterie Alfayo v Margaret C Wambete [2018] KECA 665 (KLR)

Court of Appeal of Kenya
19 April 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
1,843 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the respondent owns Plot No. 38 Kitalale, ruling the purchaser of a different plot failed to prove ownership.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A.) dismissed this first appeal against the judgment of Obaga J in Environment & Land Case No. 78 of 2003, Kitale. The dispute concerned ownership of Plot No. 38 Kitalale Settlement Scheme. The appellant claimed as purchaser of Plot No. 80, which he said was renumbered Plot No. 38; the respondent claimed as allottee of Plot No. 38 under an allotment letter dated 18th August, 2000. The trial court found the plots distinct, declared the respondent the rightful owner, and ordered the appellant to vacate, dismissing the respondent's counter-claim for mesne profits. On appeal, the Court first held that the appellant's contention on defective pleadings (non-endorsement of the amendment date under Order VI A Rule 8) was not open to it, having been raised neither at trial nor in the memorandum of appeal; and in any event caused no prejudice, falling within Article 159(2)(d)'s command of substantial justice over technicality. On the merits, applying section 107 of the Evidence Act, the Court held the appellant, as the party alleging ownership, bore the burden of proof. His documents all related to Plot No. 80, and he conceded having no evidence that Plot No. 80 became Plot No. 38. Official evidence established that Plot No. 80 was amalgamated with Plot No. 30 to form Plot No. 36, corroborated by a site-visit sketch plan. The Court also held the appellant could not belatedly question the respondent's locus standi when he had himself sued her. The appeal was dismissed with costs to the respondent. The decision binds subordinate courts on first-appeal re-evaluation of evidence, the burden of proof on ownership claims, and the bar on raising unraised issues on appeal.

Key legal issues

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01

Whether an appellate court may entertain an issue not raised at trial or in the memorandum of appeal

Holding

No. The issue of non-endorsement of the amended pleading with the date of amendment was raised for the first time on appeal and could not be addressed.

Reasoning

The Court perused the trial record and found the point had been neither pleaded nor argued at first instance nor included among the grounds of appeal. Since appellate jurisdiction is confined to the grounds raised, the issue was outside the Court's purview. The Court added, obiter, that the omission caused no prejudice and fell within the Article 159(2)(d) principle of substantial justice.

p. 2
02

Whether the appellant proved ownership of Plot No. 38

Holding

No. The appellant bore the burden of proof and his documentary evidence related to Plot No. 80, not Plot No. 38, while the respondent produced an allotment letter for Plot No. 38 corroborated by official records.

Reasoning

Applying section 107 of the Evidence Act, the Court held that the appellant, having sued as owner, had to prove ownership. His allotment letter and sale agreements concerned Plot No. 80, and he conceded having nothing showing Plot No. 80 became Plot No. 38. The Settlement Officer testified Plot No. 80 was amalgamated with Plot No. 30 to form Plot No. 36, and the site-visit sketch-plan corroborated this. The trial judge's findings were supported by the evidence.

p. 2
03

Whether the respondent lacked locus standi

Holding

The appellant, having himself sued the respondent claiming ownership, could not belatedly challenge her locus standi.

Reasoning

The appellant argued the Settlement Fund Trustees, as allocating authority, had not faulted his occupation, so the respondent could not challenge it. The Court rejected this because the appellant was the plaintiff who had initiated the litigation against the respondent; he could not at that late stage attack the standing of the very party he sued. The argument failed as misconceived.

p. 2

Legal principles established

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  • A first appellate court must re-consider and re-evaluate the evidence adduced before the trial court.
  • An issue not raised before the trial court nor included in the memorandum of appeal is not open to the appellate court.
  • Procedural technicalities that cause no prejudice may be overlooked in favour of administering substantial justice under Article 159(2)(d) of the Constitution.
  • The party who initiates litigation alleging ownership bears the burden of proving it under section 107 of the Evidence Act, and cannot belatedly challenge the defendant's locus standi.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Judgment and decree of the High Court declaring the respondent the rightful owner of Plot No. 38 and ordering eviction left undisturbed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Evidence ActSection 107
  • Civil Procedure RulesOrder VI A Rule 8 (now Order VIII Rule 7)
On appeal from
High Court of Kenya at Kitale
Environment & Land Case No. 78 of 2003
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution (appeal from the High Court to the Court of Appeal); first appeal on facts and law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "James Kiterie Alfayo v Margaret C Wambete [2018] KECA 665 (KLR)", Case Analysis (2018). Civil Appeal No. 24 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/665/eng@2018-04-19

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