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ELCDismissedAppeal from Webuye Senior Principal Magistrate's Court Civil Case No. 27 of 2012· [2023] KEELC 405 (KLR)

Watimah v Wabwile & another (Environment and Land Appeal 8 of 2019) [2023] KEELC 405 (KLR)

Environment and Land Court
20 January 2023
3,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's appeal, confirming a Webuye plot was lawfully repossessed, re-allocated and sold to another buyer.

What this practically means

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Executive summary

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The Appellant sued the Respondents at Webuye Senior Principal Magistrate's Court seeking eviction from Plot No. 2xx Webuye Site and Service, a permanent injunction, and special damages of Kshs.16,500, claiming the plot had been allocated to her by the National Housing Corporation. The trial court, Hon N. N. Barasa (SRM), dismissed her suit on 22nd February 2022 with each party bearing their own costs. Aggrieved, the Appellant appealed on six grounds, principally that the trial magistrate failed to address the real issues, erred in finding she had not proved ownership, declined awarded special damages, wrongly required her to enjoin the Municipal Council of Webuye and the NHC, and was biased. Boaz N. Olao J, re-evaluating the evidence as required on a first appeal, found the documentary evidence conclusive: an NHC letter of 1st February 2012 showed the plot had been repossessed and re-allocated to the 1st Respondent, and a Municipal Council of Webuye letter of 14th April 2009 confirmed the re-allocation, after which the 1st Respondent sold the plot to the 2nd Respondent on 8th November 2011 for Kshs.175,000. The bias allegation was rejected as unsupported. The special damages claim failed for want of strict proof, no receipts having been produced. The ground on non-joinder of the Council and NHC succeeded but was of no consequence since the remedies sought lay only against the Respondents. The appeal was dismissed with each party bearing their own costs, the trial court's judgment being affirmed.

Key legal issues

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01

Ownership of the suit plot

Holding

The Appellant failed to prove ownership; the plot was repossessed and re-allocated to the 1st Respondent who sold it to the 2nd Respondent

Reasoning

The Appellant's own NHC letter of 1st February 2012 showed the plot had been repossessed and re-allocated to the 1st Respondent, with a loan balance outstanding and last payment in 2004. The Municipal Council of Webuye's letter of 14th April 2009 confirmed re-allocation to the 1st Respondent, and a sale agreement of 8th November 2011 transferred the plot to the 2nd Respondent for Kshs.175,000. These contents were never re-called.

p. 4
02

Alleged bias of the trial magistrate

Holding

The allegation of bias was rejected as unsubstantiated

Reasoning

Counsel for the Appellant placed no evidence before the court suggesting bias. There was nothing in the record to suggest the trial magistrate had any interest in the suit plot, knew the parties, or had reason to pre-determine the outcome. Had there been such a fear, the Appellant could have sought recusal. The court cited Locabail (UK) Ltd v Bayfield Properties Ltd on the rule against a judge acting in his own cause.

p. 5
03

Special damages of Kshs.16,500

Holding

The claim failed for want of strict proof despite being pleaded

Reasoning

Special damages must be specifically pleaded and strictly proved. Other than pleading the claim, the Appellant produced no receipts, invoices or other documents proving the value of the destroyed building materials. The suit was filed a month after the alleged destruction, so she could have obtained the relevant documents. The court held the sum appeared plucked from the air.

p. 6
04

Failure to enjoin the Municipal Council of Webuye and the National Housing Corporation

Holding

The ground of appeal succeeded but was of no significance

Reasoning

The remedies sought (eviction, permanent injunction, special damages) could only be pleaded against the Respondents, who alone were alleged to have trespassed. Neither entity had trespassed, so the Appellant had no basis to implead them as she sought no remedy from them. Only the Respondents could have enjoined them as third parties under Order 1 Rule 15 of the Civil Procedure Rules.

p. 6
05

Alleged interference with occupation pending suit

Holding

The ground failed; an interlocutory injunction application in 2016 could not remedy the situation

Reasoning

The Appellant's Notice of Motion dated 26th August 2016 remained un-prosecuted for a year and was dismissed on 23rd May 2017. By 26th August 2016 the Respondents had been in occupation for over five years, the sale to the 2nd Respondent having occurred on 8th November 2011, so nothing remained for a temporary injunction to remedy.

p. 7

Legal principles established

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  • On a first appeal the court must re-consider and analyse the evidence adduced before the trial court and arrive at its own decision, while bearing in mind that it did not hear the witnesses
  • The burden of proof lies on the party who asserts facts upon which a legal right or liability is claimed (Sections 107, 108 and 109 of the Evidence Act)
  • A judge with a personal interest in the subject of a trial must recuse himself; there can be no fair trial without impartiality
  • Special damages must be specifically pleaded and strictly proved

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Evidence ActSections 107, 108, 109
  • Civil Procedure RulesOrder 1 Rule 15

Cases cited (5)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    1968 E.A 123
  • Peters v Sunday Post Ltd
    1958 E.A 124
  • Locabail (uk) Ltd v Bayfield Properties Ltd & another
    2000 QB 451
  • Hahn v Singh
    1985 KLR 716
  • Douglas Kalafa Ombeva v David Ngama
    2013 eKLR
On appeal from
Webuye Senior Principal Magistrate's Court
Civil Case No. 27 of 2012
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts

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, "Watimah v Wabwile & another (Environment and Land Appeal 8 of 2019) [2023] KEELC 405 (KLR)", Case Analysis (2023). Appeal from Webuye Senior Principal Magistrate's Court Civil Case No. 27 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/405/eng@2023-01-20

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