Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMeru ELC Appeal (from Meru CMCC 808 of 2003)· [2021] KEELC 4630 (KLR)

Samuel N. Mbiriga & 7 others v Bikhabai Muthubhai Patel & 4 others [2021] KEELC 4630 (KLR)

Environment and Land Court
27 January 2021
LMLucy N. Mbugua
3,051 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal to the Environment and Land Court at Meru against the judgment of the magistrates' court delivered on 29/11/2018 in Meru CMCC 808 of 2003 dismissing the appellants' suit. The appellants, tenants trading on Plot No. Meru Municipality Block II/50, had sought a declaration that they were not tenants of the respondents and a permanent injunction after the 5th respondent auctioneers proclaimed their goods for distress of rent pursuant to a receiver appointed in Meru HCCC No. 124 of 1997 over ownership of the plot. The trial magistrate found the respondents' evidence sufficient and the appellants not to have come to court with clean hands. On appeal, Lucy N. Mbugua, ELC Judge, identified the sole issue as whether the appellants proved their case. Applying the balance-of-probabilities standard and the burden-of-proof provisions of the Evidence Act, the court held the appellants' evidence failed to identify the landlord or owner of the premises; under the maxim quicquid plantatur solo solo cedit, the buildings passed with the land title. The court further found the appellants were aware of the High Court orders appointing a receiver, having pleaded the decree in their own plaint and obtained an injunction against it. The appellants had also defied the ELC judgment of 28/9/2018 setting aside their injunction. The court found no fault in the trial court's decision and dismissed the appeal with costs to the respondents on 27 January 2021.

Key legal issues

#
01

Whether the appellants proved their claim on a balance of probabilities

Holding

The appeal is dismissed; the appellants failed to identify the owner of the premises and the trial court's dismissal was without fault

Reasoning

As first appellate court, the ELC re-evaluated the evidence. The appellants admitted tenancy but their evidence did not show that Time Karimi Yusuf or Yusuf Mucheke owned the premises; under quicquid plantatur solo solo cedit the structures passed with the land title. They were also aware of the receiver's appointment in HCCC 124 of 1997, having proclaimed against them and having sued and obtained injunction themselves. Their defiance of court orders also weighed against them.

p. 3
02

Whether the appellants were aware of the orders in HCCC 124 of 1997 appointing the receiver

Holding

The appellants were aware of the High Court orders and cannot feign ignorance

Reasoning

PW1 admitted being told rent should be paid to the official receiver. The appellants' own plaint referred to the proclamation as execution of the decree in HCCC 124 of 1997, and they were able to file CMCC 808 of 2003 and obtain an injunction against those orders, demonstrating knowledge.

p. 4

Legal principles established

#
  • The burden of proof lies on the person who would fail if no evidence were given on either side
  • Civil claims are proved on a balance of probabilities
  • Whatever is affixed to the ground belongs to the ground - buildings on leased land pass with the title

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondents

Authorities

#

Legislation

  • Evidence ActSections 107, 108, 109
  • Distress for Rent Act
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Selle & Ano. vs. Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR
  • D.T Dobie & Company (K) Ltd Vs Wanyonyi Wafula Chebukati
    [2014] eKLR
  • Miller Vs Minister of Pensions
    [1947]
  • Giella vs Cassman Brown & Co. Ltd
    1973 E.A 358
On appeal from
Chief Magistrate's Court, Meru
Meru CMCC 808 of 2003
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act (appeal from the magistrates' court), being a first appeal on law and fact

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel N. Mbiriga & 7 others v Bikhabai Muthubhai Patel & 4 others [2021] KEELC 4630 (KLR)", Case Analysis (2021). Meru ELC Appeal (from Meru CMCC 808 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4630/eng@2021-01-27

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