Kenneth Litswa v Martin Shivere & 2 others [2020] KEELC 282 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed an appeal over a repossessed plot because the buyer couldn't prove he had paid what he owed.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant discharged the burden of proving compliance with the terms of the allocation and unlawful repossession
The appellant failed to prove his case on a balance of probabilities; there was no prima facie proof of full compliance with the terms of the offer at the time of repossession
The appellant produced a letter of offer, approved building plans and a few receipts, but no evidence showed he was up to date with repayments. The trial magistrate found only Kshs 17,100 had been paid by 11.10.2005, and this court concurred. Applying sections 107, 109 and 112 of the Evidence Act, the evidential burden lay on the appellant and was not discharged.
Whether the 1st respondent was a bona fide purchaser for value
The 1st respondent (DW1) was found to be a bona fide purchaser for value, having seen the advertisement, applied, paid the purchase price of Kshs 330,000 and obtained an allotment letter
DW1 testified he saw the suit house advertised in 2010, learned of arrears of Kshs 277,000, applied, received an offer, paid the purchase price, entered a sale agreement and received an allotment letter, and produced all relevant documents. The court therefore found the subsequent allocation to him lawful.
The duty of a first appellate court
The court re-evaluated the evidence afresh but declined to interfere with the trial magistrate's findings of fact
Citing Selle vs Associated Motor Boat Co Ltd and Williamson Diamonds Ltd vs Brown, the court reiterated that a first appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses, and that findings of fact are not disturbed unless based on no evidence or wrong principles.
Non-dealing with suit property during pendency of litigation
Parties should not alienate or deal with suit property during the pendency of contentious litigation so as to defeat the other party's rights
The appellant argued that the title was processed during the pendency of the suit as a ploy to defeat his claim, relying on Rose Wakanyi Karanja and Bellamy vs Sabince. However, the court did not base its dismissal on this head; the appeal failed principally on the burden of proof.
Legal principles established
#- An appellate court will not ordinarily interfere with findings of fact of a trial court unless based on no evidence, on misapprehension of it, or on wrong principles
- On a first appeal the court must re-evaluate the evidence and draw its own conclusions, allowing for the fact it did not see or hear the witnesses
- The burden of proof lies on the person who asserts; he who asserts must prove
- In civil cases the standard of proof is a balance of probabilities
Court orders
#- 1.The appeal is dismissed with no orders as to costs
- On appeal from
- Vihiga Principal Magistrate's Court
- Civil Case No. 85 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the Vihiga Principal Magistrate's Court (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Litswa v Martin Shivere & 2 others [2020] KEELC 282 (KLR)", Case Analysis (2020). ELCA Case No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/282/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.