James Mwangi Kuria v Francis Muriithi Samson [2017] KEELC 2046 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of prior orders in a succession cause over the suit plot
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
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.
Counter-claim for rent as special damages
The counter-claim for rent failed because the amount of special damages was neither specifically pleaded nor proved
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.
General damages for non-user of the four rooms
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
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.
Costs of the subordinate court suit
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
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Each party to meet their own costs both of the appeal and in the court below
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.