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ELCDismissedELC Appeal No. 24 of 2017· [2018] KEELC 1302 (KLR)

Recha Sayia v Julius Shisero [2018] KEELC 1302 (KLR)

Environment and Land Court
16 October 2018
NMN.A. Matheka
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who claimed his property was wrongly demolished lost his appeal because he never produced a surveyor's report proving which parcel the eviction happened on.

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 at Kakamega against the judgment of Honourable Eshitubi in Kakamega CMCC No. 337 of 2010. The appellant, who had been the plaintiff in the lower court, claimed that the respondent wrongfully and maliciously used an eviction order relating to land parcel S. Kakamega/CheMuchE/402 (later subdivided into parcels 1538 and 1539) to evict him from and demolish property on parcel 403, and appealed on eight grounds, principally that the magistrate applied the wrong standard of proof, demanded land registrar's evidence unnecessarily, and wrongly extended judicial privilege to the respondent. The appellant relied on the prior court order of 6th August 2010 stopping misuse of the eviction order, cross-examination admissions that parcel 402 no longer existed at execution, and testimony of a shared brother and PW4 that the demolition occurred on parcel 403. The respondent maintained the eviction order related to parcels 1538 and 1539, formerly 402, and that the burden of proof lay on the appellant. The court, applying Mwanasokoni v Kenya Bus Service, held it was duty bound to re-evaluate the evidence but would not interfere with trial court findings of fact unless based on no evidence, misapprehension, or wrong principles. It noted no surveyor's report was produced to establish where the eviction occurred, agreed with the trial magistrate's lament on that omission, and found the decision judiciously arrived at and the award supported by cogent evidence. The appeal was dismissed with costs to the appellant.

Key legal issues

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01

Standard of appellate review of findings of fact in a first appeal

Holding

The court, while duty bound to re-evaluate the evidence, will not interfere with the trial court's findings of fact where they were judiciously arrived at and supported by evidence

Reasoning

Relying on Mwanasokoni v Kenya Bus Service, the court stated that a first appellate court must revisit and evaluate the evidence and reach its own conclusion, but will not disturb findings of fact unless they were based on no evidence, on misapprehension of the evidence, or on wrong principles. The court found the magistrate's decision was judiciously arrived at and the award based on cogent evidence, and declined to interfere.

p. 2
02

Burden of proving on which parcel the eviction and demolition took place

Holding

The burden remained on the plaintiff/appellant to prove where the eviction was conducted; failure to produce a surveyor's or land officer's report was fatal to the appeal

Reasoning

The appellant claimed his property on parcel 403 was destroyed under an eviction order relating to parcel 402 (later subdivided into 1538 and 1539). No report establishing the boundaries or the exact site of the eviction was produced. The trial magistrate had lamented the absence of a land officer's input, and the appellate court agreed with that assessment, finding no basis to disturb the dismissal of the claim.

p. 2

Legal principles established

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  • An appellate court is duty bound to revisit the evidence on record, evaluate it and reach its own decision, but will not ordinarily interfere with findings of fact of the trial court unless they were based on no evidence, on misapprehension of it, or on wrong principles

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.The appellant is to meet the costs of the appeal

Authorities

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Cases cited (3)

  • PI (suing as a next of kin of CM (deceased) vs Zera Roses
    Eldoret Civil Appeal No. 126 of 2009
  • Civil Appeal 7 of 2014. Evans Otieno vs Cleophas Mbwana
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Chief Magistrate's Court at Kakamega
CMCC No. 337 of 2010
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court

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, "Recha Sayia v Julius Shisero [2018] KEELC 1302 (KLR)", Case Analysis (2018). ELC Appeal No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1302/eng@2018-10-16

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