Erastus Mbuba Zakaria v Kinyua Nyaga Gatumu [2017] KEELC 2074 (KLR)
The bottom line
#The High Court dismissed a landowner's trespass appeal because he failed to prove exactly where his boundary was, showing courts won't build your case for you.
What this practically means
#Executive summary
#Key legal issues
#Notice of intention to act in person (Order 9 Rule 8(1) Civil Procedure Rules)
The ground fails; the Respondent never intended to act in person - his counsel merely failed to attend despite a 'very last adjournment', so no notice was required
The record showed the Respondent's counsel was absent on the hearing date despite a final adjournment warning. The Respondent attempted to reach his counsel without success, and the court directed the trial to proceed. He was all along represented; his conducting of his own case in counsel's absence did not amount to an intention to act in person within the meaning of Order 9 Rule 8(1).
Burden of proving trespass and the identity of the boundary
The Appellant bore the burden under Section 109 of the Evidence Act and failed to discharge it by calling a surveyor or the Land Registrar
Having pleaded trespass, eviction, damages and mesne profits, the Appellant presupposed knowledge of the boundary. Counsel declined to summon the District Surveyor and closed his case. The trial court was not obliged to investigate. The trial Magistrate correctly held that it is the duty of the party alleging a fact to prove it.
Request to order the Land Registrar/District Surveyor to fix the boundary
Refused; such relief could not be granted through submissions where not pleaded, and the proper remedy was under Section 19 of the Land Registration Act
The Appellant had not sought boundary fixing in his plaint, so the court was entitled to proceed on the assumption the boundary was fixed. Reliance on the earlier order in Runyenjes CC No. 29 of 2005 did not assist, as that order was made by consent of proceedings in a different case and the relief was not pleaded here.
Credibility of witnesses and evaluation of evidence
The trial Magistrate was entitled to prefer the Respondent's evidence; the appellate court found no basis to fault his findings
PW3 admitted on cross-examination that he was not a surveyor and could not tell the exact boundary between the parcels. The trial court had the benefit of observing and hearing the witnesses, and its findings were neither based on no evidence nor on a misapprehension of the law, so they commanded the appellate court's respect.
Costs
The order that the Appellant pay costs was proper; costs follow the event and no good reasons were advanced to deny the Respondent costs
Section 27(1) of the Civil Procedure Act gives the court discretion on costs, with costs following the event unless there are good reasons otherwise. The successful party is ordinarily entitled to costs. No reasons were advanced for denying the Respondent costs, and the appellate court would not interfere with a judicially exercised discretion.
Legal principles established
#- A first appellate court will not interfere with findings of fact by the trial court unless they were based on no evidence, on a misapprehension of the evidence, or the trial court acted on wrong principles
- The burden of proving a particular fact lies on the person who wishes the court to believe in its existence (Section 109, Evidence Act); a plaintiff alleging trespass must prove the boundary
- A court should not descend into the arena of litigation and investigate or prosecute a party's case; a trial court cannot order an investigation on the court's own motion where a party has not sought it
- Costs follow the event under Section 27(1) of the Civil Procedure Act and an appellate court will not interfere with the trial court's discretion on costs unless exercised unjudicially or on wrong principles
- A party who defended through an advocate who absents himself does not thereby 'intend to act in person' so as to trigger the notice requirement of Order 9 Rule 8(1) of the Civil Procedure Rules
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- On appeal from
- Principal Magistrate's Court at Runyenjes
- Civil Case arising from transfer of the suit filed in the High Court on 25th October 2012
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court suit transferred pursuant to the Chief Justice's Practice Directions dated 9th November 2012 (land and environment matters within magistrates' pecuniary jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erastus Mbuba Zakaria v Kinyua Nyaga Gatumu [2017] KEELC 2074 (KLR)", Case Analysis (2017). High Court Civil Appeal (from Runyenjes PMCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2074/eng@2017-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.