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Court of AppealDismissedCivil Appeal 92 of 2018· [2022] KECA 748 (KLR)

Okiro v Gatatha Farmers; Kaitet Tea Farmers (1977) Limited (Interested Party)

Court of Appeal
27 May 2022
PKP. O. KiageMNMumbi NgugiFTF. Tuiyott
3,221 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a land licence tied to a person's employment dies with them and cannot be inherited by their family.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) dismissed an appeal against the Environment and Land Court at Kitale (Njoroge, J), which had declared Gatatha Farmers the rightful owner of some 1,800 acres at Endebess and granted it a permanent injunction against Otieno Okiro. The respondent had purchased the land from Endebess Estate Limited in 1977. Okiro's father, an employee of Endebess Limited, had been allowed to occupy 6 acres during his lifetime; he died in 1980, and the appellant thereafter claimed 36 acres by inheritance. The appellate court distilled two issues: entitlement to the land and limitation. It held that the deceased's occupation was a personal licence tied to his employment, evidenced by letters, a statutory declaration and an affidavit of Guy D'Olier, and that it ended on his death, leaving the appellant a trespasser. The appellant's evidence fell short of the balance of probabilities once the evidentiary burden shifted to him. On limitation, the court held that trespass is a continuing cause of action accruing day to day, so the suit was not time-barred despite an earlier Eldoret eviction suit dismissed for want of prosecution. Grounds of fraud, payment for land, and judicial bias were not entertained because they had not been raised before the superior court. The appeal was dismissed in its entirety with no order as to costs, the decision below being affirmed in full.

Key legal issues

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01

Whether the deceased's occupation of the suit land conferred an inheritable interest

Holding

No - the deceased occupied 6 acres under a personal licence from his employer, which ended on his death; the appellant inherited nothing and became a trespasser.

Reasoning

The respondent proved it purchased the land bona fide in 1977. Letters, a statutory declaration and an affidavit by Guy D'Olier showed the concession was restricted to the deceased's lifetime, after which the land would revert. The appellant's contrary evidence fell short of the balance of probabilities.

p. 6
02

Whether the suit was time-barred under the Limitation of Actions Act

Holding

No - trespass is a continuing cause of action accruing day to day while the appellant remains in occupation.

Reasoning

The appellant was still in occupation of the property, so each day of continued trespass constituted a fresh cause of action. The earlier Eldoret suit dismissed for want of prosecution did not bar the present suit, which was founded on the continuing trespass.

p. 6
03

Whether new grounds raised only on appeal (fraud, deductions from earnings, judicial bias) could be entertained

Holding

No - grounds not raised at the superior court could not be determined on appeal.

Reasoning

The court declined to make first-instance determinations without the benefit of the trial court's input, citing M'inoti, JA in Kenya Hotels Limited v Oriental Commercial Bank Limited. Those grounds were accordingly excluded from consideration.

p. 3

Legal principles established

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  • A licence granted to an employee for use during his lifetime is personal and does not survive his demise or pass to his family by inheritance.
  • Trespass is a continuing cause of action; each continuance of trespass gives rise to a fresh cause of action, so limitation does not bar a suit while the trespasser remains in occupation.
  • A first appellate court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses.
  • Once a plaintiff proves its case on a balance of probabilities, the evidentiary burden shifts to the defendant, who must discharge it.
  • An appellate court will not entertain grounds not raised at the superior court, as it cannot metamorphose into a trial court without the benefit of the first-instance court's input.

Court orders

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  1. 1.Appeal dismissed in totality
  2. 2.No order as to costs

Authorities

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Legislation

  • Limitation of Actions Act
  • Evidence ActSection 107
  • Evidence ActSection 109
  • Evidence ActSection 112

Cases cited (5)

  • Kenya Hotels Limited -vs- Oriental Commercial Bank Limited
    [2018] eKLR

    That an appellate court should not make first-instance determinations on grounds not raised at the superior court.

  • Selle -vs- Associated Motor Boat Co
    [1968] EA 123

    Duties of a first appellate court on appeal by way of retrial.

  • Abdul Hameed Saif -v- Ali Mohamed Sholan
    (1955), 22 E. A. C. A. 270

    Allowance to be made for the trial judge's advantage of seeing and hearing witnesses.

  • Samuel Ndegwa Waithaka -vs- Agnes Wangui Mathenge & 2 Others
    [2017] eKLR

    The standard of proof on a balance of probabilities in civil cases.

  • H (Minors)
    [1966] AC 563

    Lord Nicholls on the flexible balance-of-probabilities test and inherent probability of allegations.

On appeal from
Environment and Land Court of Kenya at Kitale
ELC No. 57 of 2011
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court

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, "Okiro v Gatatha Farmers; Kaitet Tea Farmers (1977) Limited (Interested Party)", Case Analysis (2022). Civil Appeal 92 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/748/eng@2022-05-27

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