Peter Kariuki (Suing as the Appellant/Plaintiff) v 1st and 2nd Respondents & 3rd Respondent

The Appellant alleged the transactions were irregular and called PW2, the original allottee, who denied executing the 7th March 2008 agreement. That discharge shifted the burden to the Respondents under Section 109 of the Evidence Act, as they desired the court to believe the signature was genuine. The trial magistrate erred in holding that the Appellant, who bore the initial burden under Section 107, had failed to discharge it.

The letter of allotment dated 21st September 2001 required payment of Kshs. 15,000 stand premium within 30 days, but payment was only made on 22nd June 2011. An allotment letter is a mere offer that confers no interest until its conditions are fulfilled. The 2008 agreement preceded the crystallisation of PW2's interest, whereas the Appellant's purchase in May 2012 came after it had crystallised.

The Appellant produced the letter of allotment, a police abstract for its loss, a letter from the 3rd Respondent confirming the allotment to PW2, and PW2's testimony that she sold the property to him. The 3rd Respondent did not deny issuing the allotment or the confirming letter. The 1st Respondent, by contrast, could not prove payment of the purchase consideration, and the 2008 agreement introduced persons with no interest in the property.

Trespass is actionable per se. However, no evidence of the suit property's state or value before and after the trespass was produced, making assessment under the Philip Ayaya Aluchio parameters (difference in value or cost of restoration) impossible. The court therefore applied the Nakuru Industries approach and, considering inflation and rising land values, fixed general damages at Kshs. 2,000,000.