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ELCDismissedAppeal from Kerugoya Senior Resident Magistrate's Court (suit over Plot No. 127 Wanguru Market)· [2017] KEELC 2046 (KLR)

James Mwangi Kuria v Francis Muriithi Samson [2017] KEELC 2046 (KLR)

Environment and Land Court
14 July 2017
2,304 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court (B.N. Olao, J) by a litigant in person against a judgment of D. Nyaboike (RM) delivered on 13 April 2015. The dispute concerned Plot No. 127 at Wanguru Market, jointly owned by the Respondent's late father and one Gaitho Njoroge, and later involving the late Samson Kuria Gatwe, father of the feuding step-brothers. The Respondent sued in the subordinate court alleging the Appellant had fraudulently added himself as a partner in the plot and sought a declaration reverting it to his and his father's names. The trial magistrate declined relief, holding the plot had already been shared among the deceased's three houses in Kerugoya SRM Succession Cause No. 44 of 2005, adopting those orders and directing the County Council to amend its records; the Appellant's counter-claim for rent and general damages was also dismissed. On appeal, the court applied Selle v Associated Motor Boat Co on its re-evaluative role, upheld the trial magistrate's reliance on the prior succession cause orders (in effect res judicata), holding that disturbing them would amount to sitting on appeal over a court of concurrent jurisdiction. The dismissal of the counter-claim was affirmed because the rent claim as special damages was neither specifically pleaded nor proved, and the general damages claim failed since the Appellant did not prove he constructed the four rooms. The only interference was with costs: the award of costs to the Respondent in the lower court was set aside, each party bearing their own costs of both the appeal and the court below, given the finding and the sibling relationship between the parties.

Key legal issues

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01

Effect of prior orders in a succession cause over the suit plot

Holding

The trial magistrate was right in refusing to disturb the orders in Kerugoya SRM Succession Cause No. 44 of 2005 sharing Plot No. 127 among the three houses of the deceased, since no appeal lay from those orders

Reasoning

The dispute over Plot No. 127 had already been determined in Succession Cause No. 44 of 2005, where orders were made sharing the plot among the three houses of the deceased and directing the County Council to amend its records. The trial magistrate invoked the principle of res judicata by adopting those orders rather than contradicting them, which the appellate court held was the correct course, as doing otherwise would amount to the magistrate sitting on appeal over a decision of a court of concurrent jurisdiction.

p. 3
02

Counter-claim for rent as special damages

Holding

The counter-claim for rent failed because the amount of special damages was neither specifically pleaded nor proved

Reasoning

Under Section 107 of the Evidence Act, the party claiming must prove the facts asserted. The rent claim was a special damage claim requiring specific pleading and cogent proof. The counter-claim did not specify the amount sought, and no evidence in chief quantified it, so the trial court could not 'pick a figure from the air'. The claim was therefore not available to the Appellant.

p. 4
03

General damages for non-user of the four rooms

Holding

The dismissal of the general damages claim was a finding of fact entitled to respect, as the Appellant did not prove he constructed the rooms

Reasoning

The trial magistrate found the Appellant did not prove he constructed the four rooms from which he demanded rent. That was a finding of fact based on the magistrate's advantage of seeing and hearing witnesses, and it had not been shown to be unsound. Without proof of construction, there was no basis for an award of general damages for non-user.

p. 4
04

Costs of the subordinate court suit

Holding

The order awarding the Respondent costs of the suit was set aside, each party to bear their own costs given the finding and the sibling relationship

Reasoning

Since the trial court found that the prayer sought had already been determined by another court, there was no basis to award the Respondent costs. Additionally, as the parties are siblings, an order that each party meet their own costs would serve the interest of justice. The appellate court therefore interfered with the costs order.

p. 4

Legal principles established

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  • On a first appeal, the appellate court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses, and will not interfere with findings of fact unless based on no evidence, misapprehension of evidence, or wrong principles
  • Special damages must be specifically pleaded and proved before they can be awarded
  • An appellate court should be slow to differ from findings of fact of the trial court that had the advantage of seeing and hearing the witnesses
  • A trial court ought not to contradict orders made by another court of competent jurisdiction from which no appeal was preferred, as that would amount to sitting on appeal over a decision of a court of concurrent jurisdiction

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to meet their own costs both of the appeal and in the court below

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)

Cases cited (3)

  • Selle vs Associated Motor Boat Company Ltd
    1968 E.A 123
  • Provincial Co East Africa Ltd vs Nandwa
    1995-1998 2 E.A 288
  • Peters vs Sunday Post
    1958 E.A 424
On appeal from
Senior Resident Magistrate's Court (judgment by D. Nyaboike, Resident Magistrate)
Not stated (relates to Kerugoya SRM Succession Cause No. 44 of 2005)
Jurisdiction invoked
First appellate jurisdiction of the High Court/Environment and Land Court over decisions of subordinate courts

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, "James Mwangi Kuria v Francis Muriithi Samson [2017] KEELC 2046 (KLR)", Case Analysis (2017). Appeal from Kerugoya Senior Resident Magistrate's Court (suit over Plot No. 127 Wanguru Market). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2046/eng@2017-07-14

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