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ELCDismissedELC Appeal Case No. 22 of 2020· [2021] KEELC 3562 (KLR)

Anastacia Midialo Masime v Attorney General (Sued on behalf of District Land Registrar- Siaya District & 2 others [2021] KEELC 3562 (KLR)

Environment and Land Court
22 April 2021
AOANTONY OMBWAYO
1,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The appellant, registered owner of land parcel North Gem/Marenyo/515, sued the Attorney General (on behalf of the District Land Registrar, District Land Surveyor and Ministry of Lands, Siaya District) alleging that in 2013 they created a road reserve on her parcel without her consent or knowledge, in breach of the statutory procedure and of her right to peaceful enjoyment of property. She sought a declaration that the road reserve was illegal, null and void, its cancellation, amendment of the map sheet, general and exemplary damages, costs and interest. The respondents denied creating the road reserve. The suit was transferred to the Principal Magistrates Court at Siaya, where the magistrate dismissed the claim, finding it unclear whether the road lay on parcel 515 or 1125 and that the plaintiff had not proved loss of acreage or her case on a balance of probabilities. On first appeal, Ombwayo J restated the duty of a first appellate court per Selle v Associated Motor Boat Company Ltd and re-evaluated the evidence. The maps showed the road absent in the February 2005 map (PE2) but present in PE3, with the last amendment on 25 November 2013; however, the map did not show which parcel was subdivided to create the road. The court held the appellant bore the legal burden under Section 107 of the Evidence Act to prove her parcel was subdivided, which she failed to discharge. The appeal was dismissed, affirming the trial magistrate's judgment. No express costs order was made.

Key legal issues

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01

Duty of a first appellate court

Holding

The first appellate court must reconsider and evaluate the evidence afresh, subject to the absence of advantage of seeing the witnesses

Reasoning

The court adopted the classic statement in Selle v Associated Motor Boat Company Ltd, holding that it must evaluate the evidence and draw its own conclusions, while making allowance for not having heard the witnesses, and need not follow the trial court's findings where these ignore material circumstances or probabilities.

p. 2
02

Burden and standard of proof on the appellant's claim of illegal creation of a road reserve

Holding

The appellant bore the legal burden under Section 107 of the Evidence Act to prove that her parcel was subdivided to create the road, and she failed to discharge it

Reasoning

Although the maps showed the road did not exist in 2005 (PE2) but appeared later (PE3), the appellant did not demonstrate that the road was created on parcel 515 rather than 1125, nor that her acreage was reduced. The County Surveyor's failure to explain the maps did not shift the burden from the plaintiff.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having heard the witnesses
  • He who alleges must prove; the burden of proof lies on the person alleging the fact, on a balance of probabilities

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The judgment of the trial court is upheld

Authorities

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Legislation

  • Evidence Act, Cap. 80Section 107

Cases cited (1)

  • Selle v Associated Motor Boat Company Ltd
    [1968] EA 123
On appeal from
Principal Magistrates Court at Siaya
Siaya PMCC ELC No. 66 of 2018 (originally ELC No. 114 of 2014)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Principal Magistrates Court

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, "Anastacia Midialo Masime v Attorney General (Sued on behalf of District Land Registrar- Siaya District & 2 others [2021] KEELC 3562 (KLR)", Case Analysis (2021). ELC Appeal Case No. 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3562/eng@2021-04-22

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