Mugi & 11 others (Suing as delegates of Kenya African National Union (KANU) Kiharu Branch) v Maina & another (Environment and Land Appeal E008 of 2021) [2022] KEELC 2718 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed KANU branch delegates' land appeal because they never pleaded or proved their ownership claim or the fraud they alleged.
What this practically means
#Executive summary
#Key legal issues
#Production of documents by a person who is not their maker (section 35, Evidence Act)
Although the reason given by the trial Magistrate for overruling the objection was wrong, admitting the affidavits without calling their makers was justified because procuring the attendance of the deponents (officials of the 2nd Respondent who did not prosecute their case) would cause delay; any improper admission is curable under section 175 of the Evidence Act
Section 35 requires the original document to be produced by its maker, with exceptions where attendance cannot be procured without unreasonable delay or expense, and section 35(2) permits admission where undue delay or expense would otherwise be caused. The Appellants did not challenge the contents of the affidavits, only the mode of production. The deponents were officials of the 2nd Respondent who never attended court, making it difficult for the 1st Respondent to procure them. The trial judgment was not founded on those affidavits, so no prejudice resulted.
Whether the sale was void for lack of written approval from the National Governing Council under Article 27 of the KANU Constitution
Ground failed. The issue was not pleaded before the trial Court and was raised for the first time on appeal and in submissions; the trial Court also lacked jurisdiction to determine the internal mandates of KANU organs, the KANU Constitution providing an internal dispute-resolution mechanism
Pleadings set the field on which a court pronounces; parties cannot travel beyond them and submissions are not pleadings. The Appellants' plaint did not refer to an irregular sale for want of National Governing Council approval, nor to the composition and roles of KANU organs. Raising the issue on appeal would circumvent the trial process. Further, Article 21 of the KANU Constitution, by the doctrine of exhaustion, barred the Appellants from seeking the trial Court's intervention on internal dispute matters.
Whether the suit against the 2nd Respondent was uncontroverted and therefore automatically deserving of judgment
Ground failed. Uncontroverted evidence must still be interrogated and must satisfy the burden of proof on a balance of probabilities
Order 12 Rule 5 of the Civil Procedure Rules allows the court to proceed and give such judgment as is just where some defendants do not attend. However, uncontroverted evidence does not automatically carry the day; the claimant must discharge the burden of proof. This being a claim for land, the Appellants had to lead evidence of irregularities on the part of the 2nd Respondent to warrant judgment against it, and they failed to do so.
Whether the Appellants had a genuine and arguable case, and whether the trial Court ignored their submissions
Grounds failed. The Appellants failed to prove ownership or fraud; the sale agreement met the threshold of a valid contract capable of transferring rights; the trial Court adequately dealt with the pleaded issue of ownership and acquisition of title
A prima facie case is higher than an arguable case and requires evidence of infringement of a right and probability of success. The documents produced showed the land belonged to the 2nd Respondent, allocated in 1994, and validly sold to the 1st Respondent. Allegations of fraud had to be strictly pleaded and proved on a higher standard than balance of probabilities, and the Appellants did not demonstrate the essentials of fraud. The trial Court was bound by the pleadings and could not determine the unpleaded issue of approval.
Legal principles established
#- A first appellate court must re-evaluate, reassess and reanalyze the evidence and draw its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses
- Parties are bound by their pleadings and a court may not pronounce judgment on issues not arising from the pleadings
- Submissions cannot take the place of evidence and no judgment can be based on written submissions
- Evidence that is uncontroverted must still satisfy the burden of proof; it is not automatic that uncontroverted evidence wins the day
- Fraud must be specifically pleaded, particularised and distinctly proved, and cannot be inferred from the facts
- Under section 35 of the Evidence Act, a court may dispense with the calling of the maker of a document where undue delay or expense would otherwise be caused, and improper admission of evidence is curable under section 175
Court orders
#- 1.The Appeal is dismissed entirely
- 2.Costs of the appeal awarded to the 1st Respondent
- 3.The trial Court’s judgment delivered on 23rd March 2021 is upheld
- On appeal from
- Chief Magistrate’s Court, Murang’a
- Murang’a CMCC No. 195 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate’s court (Section 78 of the Civil Procedure Act); suit originally filed as Nyeri ELC No. 259 of 2016 and transferred to Murang’a CMCC No. 195 of 2018
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimilu v Teachers Service Commission (Cause 522 of 2019) [2024] KEELRC 1137 (KLR)[2024] KEELRC 1137 (KLR)20 May 2024
- Kimilu v Teachers Service Commission (Cause 522 of 2019) [2024] KEELRC 1137 (KLR)[2024] KEELRC 1137 (KLR)20 May 2024applied
- Kirima & another v Anastasio (Deceased) & another (Appeal E024 of 2021) [2024] KEELC 744 (KLR)[2024] KEELC 744 (KLR)14 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Mugi & 11 others (Suing as delegates of Kenya African National Union (KANU) Kiharu Branch) v Maina & another (Environment and Land Appeal E008 of 2021) [2022] KEELC 2718 (KLR)", Case Analysis (2022). Not stated in the judgment (first appeal from Murang’a CMCC No. 195 of 2018, formerly Nyeri ELC No. 259 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2718/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.