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ELCDismissedNot stated in the judgment (memorandum of appeal dated 20/5/2021)· [2022] KEELC 3268 (KLR)

Njuguna v Njuguna (Environment and Land Appeal 50 of 2021) [2022] KEELC 3268 (KLR)

High Court of Kenya
14 July 2022
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an appeal because the appellant could not prove his Kshs 300,000 counterclaim with any receipts or evidence.

What this practically means

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Executive summary

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This was a first appeal from the judgment of Hon B. Ojoo SPM in Githunguri SPMC Civil Case Number 59 of 2019. The dispute was between step-brothers who are co-administrators of the estate of the late Joseph Njoroge Njuguna. By a certificate of confirmation of grant, the suit property (Plot Number 1057, Share Certificate Number 10675, Embakasi Ranching Company Limited, Ruai) devolved to the respondent. The respondent sued for surrender of the share certificate, unblocking of access to the plot, and an injunction; the trial court granted those reliefs, dismissed the appellant's counterclaim for Kshs 300,000 as expenses incurred in preserving the plot, and awarded the respondent costs. On appeal, the appellant challenged the dismissal of his counterclaim and the transfer orders. The court, presided over by B M Eboso J, restated the duty of a first appellate court to re-evaluate the whole evidence, and the burden-of-proof framework in Sections 107, 108 and 109 of the Evidence Act. It held that the appellant had not particularised or proved the Kshs 300,000 claim: no receipts or supporting documents were tendered, and administration expenses are properly a charge on the estate to be placed before the succession court rather than a counterclaim against a beneficiary. The court found no merit in the appeal, affirmed the trial court's judgment, dismissed the appeal, and ordered the appellant to bear the costs of the appeal, applying the principle under Section 27 of the Civil Procedure Act that costs follow the event.

Key legal issues

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01

Whether the trial court erred in dismissing the appellant's counterclaim for Kshs 300,000

Holding

The trial court was correct: the counterclaim was not particularised and was unsupported by any evidence; the appeal lacks merit

Reasoning

The appellant pleaded only a global sum of Kshs 300,000 without particulars. He produced no receipts or documents; his list of documents contained only the certificate of confirmation of grant. Pre-confirmation expenses should have been placed before the succession court, and no post-confirmation demand or evidence of reimbursement was tendered. The court thus affirmed the trial court's dismissal of the counterclaim.

p. 5
02

The standard of interference by a first appellate court

Holding

The first appellate court must analyse, evaluate and weigh all the evidence afresh and reach its own conclusions

Reasoning

Relying on Susan Munyi v Keshar Shiani and Abok James Odera v John Patrick Machira, the court restated that on a first appeal it re-evaluates the record and determines whether the trial court's conclusions stand, giving reasons either way. Applying that standard, it found the trial court's findings unassailable.

p. 4
03

Costs of the appeal

Holding

Costs follow the event; the unsuccessful appellant bears the costs

Reasoning

Under Section 27 of the Civil Procedure Act, costs follow the event. Since the appeal was dismissed, the appellant, as the unsuccessful party, was ordered to bear the costs of the appeal.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate the whole evidence and arrive at its own independent conclusions
  • A party who asserts a legal right or liability dependent on facts must prove those facts (Sections 107, 108 and 109, Evidence Act)
  • Expenses relating to the administration of an estate are a charge against the estate and should be placed before the succession court, not raised as a counterclaim against a beneficiary without proof
  • Costs follow the event (Section 27, Civil Procedure Act)

Court orders

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  1. 1.Appeal dismissed for lack of merit
  2. 2.Appellant to bear costs of the appeal

Authorities

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Legislation

  • Evidence ActSections 107, 108, 109
  • Civil Procedure ActSection 27
  • Law of Succession ActNot specified

Cases cited (4)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Susan Munyi v Keshar Shiani
    (2013) eKLR
  • Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Kenya Ports Authority vs Kustron (Kenya) Limited
    2000 2EA 212
On appeal from
Githunguri Senior Principal Magistrate's Court
Civil Case Number 59 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (statutory appeal from the subordinate court; specific provision not cited in the judgment)

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, "Njuguna v Njuguna (Environment and Land Appeal 50 of 2021) [2022] KEELC 3268 (KLR)", Case Analysis (2022). Not stated in the judgment (memorandum of appeal dated 20/5/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3268/eng@2022-07-14

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