Lucia Wanjiku Muiruri v Naomi Waithira Wanyoike [2020] KEELC 3130 (KLR)
The bottom line
#Kenya's High Court ruled that whoever plants trees owns them unless there's solid proof they were sold or transferred to someone else.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in the claim for damages for felled trees
The trial Magistrate shifted the burden of proof to the Defendant. The Respondent, having alleged, bore the onerous task of proving her case, and needed to avail evidence that the Appellant's husband surrendered the trees to her; there was no such evidence.
The court held it was the Respondent who alleged ownership of the felled trees and therefore bore the burden under Section 107 of the Evidence Act. Once the trial Magistrate found the trees were planted by the Appellant's husband, the Respondent was required to prove that the trees were surrendered or transferred to her. No such evidence existed, so placing the burden on the Appellant was an error that led to a wrong decision.
Wrong analysis of the evidence on sale of the land and trees
The trial Magistrate misapprehended the evidence by finding that the Appellant's husband sold the land together with the trees to the Respondent's husband, yet the evidence was that the Respondent's husband bought the land in 1986 from a neighbour (DW2's uncle).
The trial court stated that by 2013 the Defendant had already sold the land and the trees to the Plaintiff, but the uncontroverted evidence was that the Respondent's husband purchased Gatamaiyu/Kagwe/734 in 1986 from a neighbour of the Appellant, not from the Appellant's husband. This misapprehension led the trial Magistrate to apply the wrong legal principle and reach a wrong finding.
Ownership of the trees in dispute
Since the trees were planted by the Appellant's (Defendant's) husband and there was no evidence they were sold to the Respondent, the trees remained the property of the Appellant, and the trial Magistrate failed to apply the binding principle in the Makotsi precedent.
The trial Magistrate correctly framed the issue as who owns the trees and correctly found the Appellant's husband planted them. Applying the principle in Joseph Mung'aya Makotsi v Kenya Power, the planter owns the trees as his investment. Without evidence of sale of the trees to the Respondent, the trial court erred in awarding the Respondent the value of the felled trees.
Award of costs
The award of costs to the Plaintiff was unobjectionable since costs are discretionary and the trial Magistrate had found in her favour.
Under Section 27 of the Civil Procedure Act, costs are awarded at the discretion of the court. The trial Magistrate had found in favour of the Plaintiff, so awarding costs to the successful litigant was proper; this ground of appeal therefore failed.
Legal principles established
#- He who alleges must prove; the burden of proof lies on the party who asserts a legal right or liability dependent on facts (Section 107, Evidence Act)
- Where a party plants trees on their own account and it is their investment, ownership of the trees follows the planter absent evidence of transfer
- A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- An appellate court will only interfere with the exercise of the trial court's discretion where it is shown the discretion was exercised contrary to law or the decision is plainly wrong
- Costs of the suit are awarded at the discretion of the court and ordinarily follow the successful litigant (Section 27, Civil Procedure Act)
Court orders
#- 1.The appeal is allowed entirely
- 2.The judgment of the lower court dated 15th June 2017 is set aside
- 3.The Plaintiff's (Respondent's) entire claim at the lower court is dismissed with costs
- 4.The appeal is allowed in terms of prayers number (a), (b) and (c) of the Memorandum of Appeal
- On appeal from
- Githunguri Principal Magistrate's Court
- Civil Suit No. 35 of 2015
- Jurisdiction invoked
- First appellate jurisdiction under Section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lucia Wanjiku Muiruri v Naomi Waithira Wanyoike [2020] KEELC 3130 (KLR)", Case Analysis (2020). Appeal against the judgment in Githunguri PM Civil Suit No. 35 of 2015 (number of the appeal itself not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3130/eng@2020-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.