Jared Omondi Lando as Legal Representative of the estate of Tito Olando Wanga v Michael Opondo Owuor as Legal Representative of the estate of Justo Owuor Musewe [2021] KEELC 2143 (KLR)
The bottom line
#The High Court in Kisumu dismissed a family's appeal to reclaim ancestral land, confirming the tribunal's decision in favour of the long-standing registered owner.
What this practically means
#Executive summary
#Key legal issues
#Scope of a first appeal on facts
The Court is entitled to re-evaluate the evidence but will not disturb the tribunal's findings absent misapprehension or disregard of material evidence; the tribunal's findings were supported by evidence and were affirmed.
Guided by Selle v Associated Motor Boat Company and Mwangi v Wambugu, the Court re-examined the tribunal record and found the findings were supported by the evidence of the claimant, the objector and Wilson Watere Waringa, and by village elders during the site visit. No compelling reason existed to depart from those findings.
Whether the tribunal erred in not considering Ukwala African Court evidence
The ground fails because the witnesses cited (Gershon Mulal, Erasto Wakar, George Onyango) testified in the Ukwala African Court, not before the tribunal; moreover, that court never made a determination, having adjourned indefinitely for a site visit.
The only witnesses before the tribunal were Tito Olando Wanga, Justo Owuor Musewe and Wilson Watere Waringa. The tribunal could not consider evidence not placed before it, and the Ukwala African Court proceedings yielded no finding that the respondent was defeated in that case.
Whether the appellant's failure to cross-examine on the accommodation claim undermined the appeal
The claimant was given the opportunity to cross-examine the objector on the claim that his father sought accommodation but did not do so, and nothing was placed before the tribunal to contradict it; the ground fails.
Matters not challenged in cross-examination stand uncontroverted. The appellant did not test the respondent's account of the accommodation arrangement, nor the evidence that Wanga's sons had their own parcels on their grandfather's ancestral land.
Legal principles established
#- On a first appeal, the court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- An appellate court will not normally interfere with a finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on a failure to take account of material circumstances or probabilities
- A tribunal cannot be faulted for failing to consider evidence that was never presented before it
Court orders
#- 1.The appeal lacks merit and is dismissed
- 2.Each party to bear their own costs of the appeal
- On appeal from
- Siaya Tribunal (adopted as judgment in Siaya SRM Misc. Civil Case No. 6 of 2002)
- 811 of 2001
- Jurisdiction invoked
- First appeal from a Land Tribunal decision adopted as a judgment of the Principal Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jared Omondi Lando as Legal Representative of the estate of Tito Olando Wanga v Michael Opondo Owuor as Legal Representative of the estate of Justo Owuor Musewe [2021] KEELC 2143 (KLR)", Case Analysis (2021). Appeal against Siaya Tribunal Land Case No. 811 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2143/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.