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ELCDismissedELC Appeal at Nakuru (appeal against judgment in CMCC No. 608 of 2010)· [2020] KEELC 2063 (KLR)

Nancy Wambui Kimani v Gad Njoroge Kimemia [2020] KEELC 2063 (KLR)

Environment and Land Court of Kenya at Nakuru
28 May 2020
1,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed the appeal, confirming that the respondent proved ownership of the land on the strength of better company evidence than the appellant's.

What this practically means

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Executive summary

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This first appeal arose from CMCC No. 608 of 2010 at Nakuru, in which the respondent, as administrator of the estate of Abraham Kimemia Munyuko, sued Geofrey Njogu (since deceased, represented by the appellant as administrator of his estate) for a declaration that Plot No. 147 Akuisi/Solai belonged to Abraham's estate and for vacant possession. On 17th May 2013, Resident Magistrate J.N. Nthuku found for the respondent, ordering vacant possession and costs. The appellant appealed, contending there was no evidence that the appellant's ballot card was stolen and that the respondent had not proved his case. The court restated the duty of a first appellate court to re-evaluate the evidence and draw its own conclusions. It found that the trial magistrate's conclusion that the appellant's ballot was one of the stolen ballots recalled and reallocated rested on the testimony of PW3, a former chairman of Akuisi Farmers Company Ltd, which carried more probative value than that of DW2, a clerical officer who was neither a member nor an official of the company. On the central question of ownership, the respondent had called a former chairman of the allocating company, while the appellant relied on a clerical officer and produced no company evidence that Geofrey was the allottee of the suit property; Geofrey's own documents did not mention plot 147 and he had no receipt for it. The respondent's case was therefore proved on a balance of probabilities. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Duty of a first appellate court

Holding

The court is duty-bound to re-evaluate and reanalyse the evidence and draw its own conclusions, subject to the disadvantage of not having seen or heard the witnesses

Reasoning

Citing the Court of Appeal in Abok James Odera and Kenya Ports Authority v Kusthon, the court restated the standard: the first appellate court considers the evidence, evaluates it itself and draws its own conclusions, while bearing in mind it neither saw nor heard the witnesses and making due allowance for that, and ruling only on the evidence on record.

p. 2
02

Whether the finding that the appellant's ballot was stolen was supported by evidence

Holding

The finding was supported by PW3's testimony, which had more probative value than that of DW2, who was neither a member nor an official of the company

Reasoning

The court compared the evidence of PW3, a former chairman of Akuisi Farmers Company Ltd who testified on the theft, recall and reallocation of ballots, against DW2, a clerical officer in the chief's office who was not a member of the company. As between the two, PW3's testimony on the allocation of plot 147 was of more probative value, so ground 2 of the appeal failed.

p. 2
03

Whether the respondent proved ownership on a balance of probabilities

Holding

Yes; the respondent called a former chairman of the allocating company while the appellant relied on a clerical officer, and the appellant failed to avail evidence from the company that Geofrey was the allottee

Reasoning

Both deceased parties were members of Akuisi Farmers Company Ltd, which allocated land by balloting. The former chairman's evidence covered the theft of ballots, their return and reallocation of plot 147 to Abraham, supported by an allotment letter and payment receipt. The appellant produced no company evidence of Geofrey's allotment of plot 147, so the respondent's case was proved to the required standard.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions should stand, while making due allowance for not having seen or heard the witnesses
  • In ordinary civil cases, proof on a balance of probabilities means establishing the case to a probability of more than 50 per cent

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
Chief Magistrate's Court at Nakuru
CMCC No. 608 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from subordinate courts in land matters

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, "Nancy Wambui Kimani v Gad Njoroge Kimemia [2020] KEELC 2063 (KLR)", Case Analysis (2020). ELC Appeal at Nakuru (appeal against judgment in CMCC No. 608 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2063/eng@2020-05-28

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