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ELCDismissedAppeal No 18 of 2019· [2021] KEELC 2320 (KLR)

Jacinta Kanocia Mailutha v Naftaly Koome & 3 others [2021] KEELC 2320 (KLR)

Environment and Land Court
28 July 2021
ECE.C. Cherono
2,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner claiming her parcel was swapped on the map lost because she had no survey map or valuation evidence to prove it.

What this practically means

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Executive summary

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The Appellant sued the Respondents in 2013, alleging they conspired to swap the location of her parcel, Amwathi/Maua/8168, on the registry map from its prime location at Iriene along the Meru-Maua highway to Kithetu, some 2km away, thereby relocating her to land worth about Ksh. 40,000 instead of approximately Ksh. 2,000,000. The 1st Respondent claimed to be the lawful purchaser for value of parcel Amwathi/Maua/15226 at Kaliene, while the 4th Respondent (a land official) confirmed the adjudication records showing the respective registrations and denied any swapping. The trial court, by judgment of 31st December 2018, dismissed the suit, finding the conspiracy unproved and noting absence of notice to the 4th Respondent. On first appeal, the court restated the principles governing first appeals (Selle v Associated Motor Boat Co.; Peters v Sunday Post; Ephantus Mwangi v Duncan Mwangi) - evaluate the evidence afresh but respect the trial court's advantage of seeing and hearing witnesses. It framed one issue: whether the Appellant proved conspiracy to exchange the location of her property. Applying Section 109 of the Evidence Act, the court held the burden fell on the Appellant, who failed to produce the survey map as at purchase for comparison, produced no valuation report for her value claims, and did not prove the 2nd Respondent's original registration of the parcel. Her assertions therefore remained unsupported and her case failed on a balance of probabilities. The appeal was dismissed, the stay of execution orders were set aside, and costs of the appeal were awarded against the Appellant.

Key legal issues

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01

Whether the Appellant proved conspiracy by the Respondents to relocate her parcel on the registry map

Holding

The appeal fails; the Appellant did not discharge the burden of proving the alleged relocation/conspiracy

Reasoning

It was uncontested that the parties were the legal owners of their respective parcels; the dispute was location. The burden of proving relocation rested on the Appellant. She did not supply the survey map existing at the time of purchase for comparison with the current map, produced no valuation report to support the alleged loss in value, and did not prove that the 2nd Respondent originally owned the parcel she claims. Her case therefore failed on a balance of probabilities, and the trial court's dismissal was affirmed.

p. 3

Legal principles established

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  • A first appellate court must evaluate and analyze the evidence afresh and arrive at its own independent conclusion, while bearing in mind that the trial court had the advantage of seeing and hearing the parties.
  • The evidential burden of proving a particular fact lies on the person who wishes the court to believe in its existence (Section 109, Evidence Act).

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The orders staying execution of the trial court's judgment are set aside
  3. 3.The costs of the appeal are borne by the Appellant

Authorities

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Legislation

  • Evidence ActSection 109

Cases cited (3)

  • Selle Vs Associated Motor Boat Co.
    [1968] EA 123
  • Peters Vs Sunday Post Limited
    [1958] EA 424
  • Ephantus Mwangi and Another Vs Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1 KAR 278
On appeal from
trial court (magistrates' court, not named in the excerpt)
not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision (memorandum of appeal filed 17th January 2019); no specific constitutional/statutory provision quoted

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, "Jacinta Kanocia Mailutha v Naftaly Koome & 3 others [2021] KEELC 2320 (KLR)", Case Analysis (2021). Appeal No 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2320/eng@2021-07-28

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