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ELCDismissedEnvironment and Land Appeal E016 of 2021· [2023] KEELC 17255 (KLR)

Thuo v Thuo & another

Environment and Land Court at Nairobi
4 May 2023
OAO. A. Angote
6,976 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a mother's appeal over a Kayole plot, confirming her son as owner because she could not strictly prove fraud.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against the judgment of the Chief Magistrate's Court at Milimani (Hon Peter Muholi) of 12th February 2021 in Civil Suit 4147 of 2018 consolidated with CMCC No 2605 of 2014, a family dispute over Plot No 21, Kayole, Nairobi between a mother (the Appellant) and her two sons. The trial court had dismissed the Appellant's claim and allowed the 1st Respondent's counterclaim declaring him the legal owner, with each party bearing its own costs. The Appellant raised 21 grounds, condensed by the court into three issues: competence of the appeal, the trial magistrate's jurisdiction, and whether the magistrate erred in dismissing her suit and upholding the counterclaim. The court held that Order 9 Rule 9 of the Civil Procedure Rules does not apply to appeals, so the new firm of advocates was properly on record. On jurisdiction, although the point was raised for the first time on appeal, the court took judicial notice that the trial magistrate was gazetted under Gazette Notice No. 11930 of 8th December 2017. The objection on the counterclaim's validity failed as it was not raised below. On the merits, the court applied the strict standard of proof for fraud, found no expert evidence impugning the Appellant's thumbprints, noted the JR decision quashing the revocation of the Power of Attorney, and found the 1st Respondent's account more probable given the Appellant's contradictory evidence. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

Competence of the appeal given change of advocates

Holding

The appeal was competent; Order 9 Rule 9 does not govern appeals, which are new proceedings

Reasoning

Relying on Stanley Mugambi v Anthony Mugambi, the court held that Order 9 Rule 9 is restricted to suits going on or concluded, not appeals. An appeal is a commencement of new proceedings in another court, so parties may retain new counsel without notice of change or leave.

p. 8
02

Jurisdiction of the trial magistrate over a land dispute

Holding

The trial magistrate had jurisdiction; judicial notice was taken that he was gazetted under Gazette Notice No. 11930 of 8th December, 2017

Reasoning

Section 26(3) of the Environment and Land Court Act requires magistrates to be gazetted to hear land matters. The Appellant produced no evidence of non-gazettement, and the court took judicial notice that the trial magistrate was duly gazetted. The objection failed.

p. 10
03

Validity of the Counterclaim for want of a verifying affidavit

Holding

The objection could not be raised for the first time on appeal; it should have been raised before the trial court

Reasoning

Unlike jurisdiction, the validity of the counterclaim was not canvassed below and the court declined to strike it out on appeal, holding it too late in the day to take such a draconian step. The trial court had the discretion whether or not to strike out.

p. 10
04

Whether the Sale Agreement and Special Power of Attorney contravened Section 4 of the Oaths and Statutory Declarations Act

Holding

No contravention; the advocate was merely witnessing execution, not administering an oath

Reasoning

Following Cove Investments, the court held that a sale agreement is not a document on oath and an advocate drawing or attesting it acts as an advocate, not a commissioner for oaths. The proviso in Section 4 was therefore not breached.

p. 11
05

Whether the Appellant proved fraud to the required standard

Holding

Fraud was not proven; no expert evidence on the thumbprints and the Appellant's contradictions undermined her case

Reasoning

Allegations of fraud require strict proof. No expert evidence showed the thumbprints were not the Appellant's; the CID report was inconclusive and she denied making it; the NLC's finding was of unclear authority and was superseded by the JR decision quashing the revocation of the Power of Attorney.

p. 12
06

Ownership of Plot No 21 Kayole on a balance of probabilities

Holding

The 1st Respondent established ownership; the trial court's findings were not disturbed

Reasoning

The 1st Respondent produced a plot formalization card, a letter from Nairobi City County affirming his ownership, and evidence of paying rates and developing the property. The Appellant's evidence was contradictory, claiming both that she transferred the property to the 2nd Respondent and that she transferred it to no one.

p. 13

Legal principles established

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  • Order 9 Rule 9 CPR does not apply to appeals; a party may engage new counsel on appeal without a notice of change
  • The question of jurisdiction can be raised at any stage of the proceedings, including on appeal
  • Fraud must be specifically pleaded, particularized and strictly proven to a standard higher than a balance of probabilities
  • A first appellate court must re-evaluate the evidence and may reach its own conclusions while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Each party shall bear her/his own costs as the parties are family members

Authorities

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Legislation

  • Environment and Land Court ActSection 26(3)
  • Magistrates' Courts ActSection 9(a)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 4 Rule 1(2)
  • Evidence ActSections 107, 109 and 112
  • Oaths and Statutory Declarations ActSection 4

Cases cited (18)

  • Priska Onyango Ojuang and Another vs Henry Ojwang Nyabende
    [2018] eKLR

    Verifying affidavit is mandatory; lack renders suit fatal

  • Galerius Investments Limited vs County Government of Mombasa & Another
    [2020] eKLR

    Failure to file verifying affidavit is fatal

  • David Mbogo vs Alfred C Asikoye and 3 Others
    [2004] eKLR

    Order 9 Rule 9 requirements for taking over conduct of a suit post-judgment

  • Ismael Norani vs Shakila Band Akram
    [2009] eKLR

    Order 9 Rule 9 compliance

  • Leo Investments Limited vs Terry Wanjiku Kariuki
    [2009] eKLR

    Failure to file verifying affidavit with a counterclaim is not fatal

  • Vijay Morharia vs Nansign Madhusing Darbard & Another
    [2002] eKLR

    Fraud must be specifically pleaded and proven

  • Central Bank of Kenya vs Trust Bank Limited & 4 Others
    [1996] eKLR

    Burden of proof in fraud cases is heavier than in ordinary civil cases

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    First appellate court must re-evaluate evidence and draw its own conclusions

  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR

    Re-affirmation of the first appeal retrial principle

  • Khalid Salim Abdulsheikh v Swaleh Omar Said
    [2019] eKLR

    Circumstances in which an appellate court interferes with findings of fact

  • Stanley Mugambi v Anthony Mugambi
    [2005] eKLR

    Order 9 Rule 9A does not apply to appeals

  • Attorney General & 2 Others v Okiya Omtata Okoiti & 14 Others
    [2020] eKLR

    Jurisdiction exists or not ab initio; can be raised at any stage including on appeal

  • Kenya Commercial Bank v Osebe
    [1982] KLR 296

    Exceptions to confining an appeal to points raised at trial

  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another
    [2020] eKLR

    Gazetted magistrates with pecuniary jurisdiction may handle title to land claims

  • Cove Investments Limited v Johana Kiprotich Rono & 2 others
    [2021] eKLR

    Sale agreement is not a document on oath; no contravention of Oaths and Statutory Declarations Act

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR

    Allegations of fraud must be pleaded and strictly proved

  • Ndolo v Ndolo
    [2008] 1 KLR (G & F) 742

    Standard of proof in fraud is higher than balance of probabilities but not beyond reasonable doubt

  • Republic vs Jane Nyambura Thuo Registrar of Titles Ministry of Lands, Nairobi Ex-parte Charles Joseph Maina Thuo
    [2021] eKLR (JR 48 of 2019)

    Quashed the notice of revocation of the Power of Attorney and reinstated it

On appeal from
Chief Magistrate's Court at Milimani Commercial, Nairobi
Civil Suit 4147 of 2018 (consolidated with CMCC No 2605 of 2014)
Jurisdiction invoked
First appellate jurisdiction over the Magistrates' Court in land matters under the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thuo v Thuo & another", Case Analysis (2023). Environment and Land Appeal E016 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17255/eng@2023-05-04

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