Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment· [2015] KEELC 426 (KLR)

Catherine Wangui Muita & another v John Muriuki Wathure & 2 others [2015] KEELC 426 (KLR)

Not stated in the judgment (first appeal from the magistrates' court; judgment delivered at Nyeri)
9 June 2015
LWL N Waithaka
4,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal from the dismissal by a trial magistrate of a suit in which the 1st Appellant and her deceased partner sought cancellation of the alleged unlawful conversion of Plot No. T.O.L AK KM 158/8 and registration of the plot in their names. The trial magistrate found the appellants had not proved their case on a balance of probabilities and dismissed the suit with costs. On appeal, the appellants raised eleven grounds, principally that the trial magistrate wrongly credited the 1st Respondent's inconsistent evidence, wrongly relied on the letter of allotment dated 24th September 1997, and wrongly awarded costs to the 2nd and 3rd Respondents who did not participate in the hearing; she sought setting aside of the judgment and a re-trial. The 1st Respondent objected that the appeal was fatally defective for misjoinder, the 2nd Appellant having died in 2007. The court, evaluating the evidence afresh, agreed with the trial magistrate that there was no concrete evidence of a completed surrender of the plot, that the appellants' case was not proved as pleaded, that non-participation of the 2nd and 3rd Respondents could not vitiate the judgment, that lack of active participation does not defeat entitlement to costs, and that misjoinder does not defeat a suit under Order 1 Rule 9 of the Civil Procedure Rules. However, the court found the trial magistrate misapprehended the parties' arrangement, wrongly directing that the 1st Respondent take four rooms and that the 1st Appellant pay rent although she did not hold the rent-paying room. The appeal was allowed in part: the lower court judgment was set aside and substituted with orders that the appellants' side hold four rooms, the 1st Respondent hold three rooms, and the 1st Respondent pay the rent to Kenya Railways. The appellant received half the costs of the appeal; each party bore their own costs in the lower court.

Key legal issues

#
01

Proof of alleged surrender of the suit property

Holding

The appellants failed to prove on a balance of probabilities that the 1st Respondent surrendered the suit property to them; the trial magistrate's finding on this was correct.

Reasoning

Although there was evidence of an intention to surrender, there was no evidence that the intention was completed, nor whether it covered the whole or only a portion of the property. He who alleges must prove, and the appellants should have called Kenya Railways personnel to explain how one ceases to be a proprietor of a plot.

p. 6
02

Whether the trial magistrate's final orders were supported by the evidence

Holding

The trial magistrate misapprehended the arrangement between the parties, referring to the 1st Respondent holding four rooms when the evidence showed he held three, and directing the 1st Appellant to pay rent though she was not holding the room reserved for rent payment.

Reasoning

The evidence showed seven rooms constructed, with the 1st Respondent in occupation of three and the appellants' side holding four. The rent-paying room was with the 1st Respondent, yet the trial magistrate ordered the 1st Appellant to continue paying rent. The judgment was therefore unsupported by the evidence and had to be set aside to that extent.

p. 7
03

Effect of non-participation of the 2nd and 3rd Respondents

Holding

Non-participation of the 2nd and 3rd Respondents could not vitiate the judgment; the burden of proving the case lay on the appellants and no prejudice was shown.

Reasoning

The burden was on the 1st Appellant to prove all allegations against all parties. The 2nd and 3rd Respondents had no role in proving the appellants' case, and there was no evidence of prejudice from their non-participation.

p. 7
04

Misjoinder and competence of the appeal

Holding

Misjoinder does not render a suit or appeal defective or fatally defective, per Order 1 Rule 9 of the Civil Procedure Rules.

Reasoning

The 1st Respondent argued the appeal was fatally defective because the 2nd Appellant died in 2007. The court relied on Order 1 Rule 9, which provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and rejected the objection.

p. 7

Legal principles established

#
  • Misjoinder or non-joinder of parties does not defeat a suit; the court may deal with the matter so far as regards the parties actually before it.
  • Non-participation of some defendants in a suit cannot vitiate a judgment where the plaintiff suffers no prejudice.
  • Lack of active participation in a suit is not a basis for denying a party an award of costs; it affects only the bill of costs.
  • A first appellate court must evaluate afresh the evidence on record and reach its own conclusions while bearing in mind that it neither saw nor heard the witnesses.

Court orders

#
  1. 1.Appeal allowed and judgment of the lower court set aside
  2. 2.Substituted order that the 1st Appellant and the Representatives of the Estate of her partner continue holding the 4 rooms reserved for them (two for each partner)
  3. 3.Substituted order that the 1st Respondent continue in possession and use of the three rooms he has been holding
  4. 4.The 1st Respondent to pay rent in respect of the suit property to Kenya Railways, being the party holding the room meant for payment of rent
  5. 5.Appellant to have half the costs of the Appeal
  6. 6.Each party to bear their own costs of the suit at the lower court

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 Rule 9

Cases cited (1)

  • Selle & Another vs. Associated Motor Co. Ltd & Others
    (1968) E.A. 123
On appeal from
Magistrates' court (trial court, trial magistrate)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the decision of the trial magistrate (statutory basis not expressly stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Catherine Wangui Muita & another v John Muriuki Wathure & 2 others [2015] KEELC 426 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/426/eng@2015-06-09

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