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Court of AppealDismissedCivil Appeal No. 81 of 2019· [2021] KECA 396 (KLR)

Lydiah Jenny Katuku Muthusi v City Chicken & Eggs Dealers Co-operative Limited & another [2021] KECA 396 (KLR)

Court of Appeal of Kenya
23 July 2021
2,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a family's land claim because they couldn't prove their late husband bought the plot — and the suit was anyway filed 24 years too late.

What this practically means

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Executive summary

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This was a first appeal from the Environment and Land Court (Bor, J.), which had dismissed the appellant's suit claiming that her late husband purchased Plot No. 118 (L.R. No. 1012/63) at Kasarani in 1981 from a member of the 1st respondent co-operative, and that the plot was later renumbered Plot No. 20, which the 2nd respondent allegedly encroached upon. The Court of Appeal, applying Rule 29 of the Court of Appeal Rules and the retrial mandate in Selle v Associated Motor Boat Co., re-evaluated the evidence. It found that the 1st respondent's records, produced through its chairman, showed no amalgamation of plots: Plot No. 20 was originally owned by the 2nd respondent's husband and transferred to her on his death, while Plot No. 118 belonged to a different person. The surveyor's testimony of renumbering did not displace this, and the appellant's own cross-examination conceded the plots were distinct. The court held the appellant failed to discharge her burden of proving purchase and renumbering. On limitation, the court found the suit filed in 2013 was about 24 years out of time under Section 7 of the Limitation of Actions Act, though it regarded that determination as academic. The appeal was dismissed with costs to the respondents. The judgment binds lower courts on the first appeal duty to re-appraise evidence and on the evidential burden on a party alleging purchase and renumbering of plots.

Key legal issues

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01

Whether the deceased purchased Plot No. 118 and whether it was renumbered Plot No. 20

Holding

The appellant failed to establish on the evidence that the deceased purchased Plot No. 118 or that it became Plot No. 20; records showed Plot No. 20 belonged to the 2nd respondent's husband

Reasoning

The court re-evaluated the evidence under its first appeal mandate. The 1st respondent's records showed no amalgamation of plots; Plot No. 20 was registered in the name of the 2nd respondent's husband and transferred to her on his death. The surveyor's evidence of renumbering was contradicted by the 1st respondent's chairman, and the appellant herself conceded on the map that the plots were different. The appellant bore the burden of proof and did not discharge it.

p. 3
02

Whether the suit was time barred under Section 7 of the Limitation of Actions Act

Holding

The action, filed in 2013 against a cause of action accruing around 1989 when the 2nd respondent entered the land, was statute barred

Reasoning

Section 7 of Cap 22 bars an action to recover land after twelve years from when the right of action accrued. The 2nd respondent entered and developed the plot in 1989; the suit was filed on 19th December 2013, about 24 years later. The court noted this determination was academic since the appeal failed on the substantive issues.

p. 4

Legal principles established

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  • In a first appeal the Court of Appeal must re-appraise the evidence and draw its own inferences of fact, though making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal fails and is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 29
  • Limitations of Actions Act (Cap 22 Laws of Kenya)Section 7
  • Limitations of Actions Act (Cap 22 Laws of Kenya)Section 26

Cases cited (1)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
On appeal from
Environment and Land Court of Kenya at Nairobi
E.L.C. No. 1542 of 2013
Jurisdiction invoked
First appeal under Rule 29 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Lydiah Jenny Katuku Muthusi v City Chicken & Eggs Dealers Co-operative Limited & another [2021] KECA 396 (KLR)", Case Analysis (2021). Civil Appeal No. 81 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/396/eng@2021-07-23

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