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ELCDismissedAppeal from Othaya SRM ELC No. 1 of 2019· [2024] KEELC 1040 (KLR)

Kiboi v Waboi & another (Environment and Land Appeal 19 of 2019) [2024] KEELC 1040 (KLR)

Environment and Land Court
29 February 2024
2,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 Nyeri against the judgment of the Senior Resident Magistrate in Othaya SRM ELC No. 1 of 2019, delivered on 10th May 2019. The Respondents had sued the Appellant for a declaration that he held land parcel Othaya/Itemeini/1840 in trust for themselves and the larger Mwaniki family, and for determination of the trust and sub-division of the parcel into four units of 0.8 acres. The trial magistrate, sitting as a formal proof after neither defendant participated in the trial, found the trust proved on a balance of probabilities and entered judgment for the Respondents with costs and interest. The Appellant appealed on six grounds, principally that he was denied a fair hearing and natural justice by the formal proof despite being in court on the judgment date, that the magistrate determined unpleaded issues, and that the court disregarded the Attorney General's response on behalf of the Land Registrar. Guided by Selle v Associated Motor Boat Company, the Court re-evaluated the record and found the Appellant had neither entered appearance nor attended the hearing, appearing only when judgment was delivered; his natural justice ground was unsubstantiated. The unpleaded-issues ground failed as the trial court dealt with the pleaded trust claim on uncontroverted evidence, and the Land Registrar's defence, unsupported by any testimony, was unavailable for consideration per CMC Aviation v Crusair. The appeal was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

Natural justice and formal proof

Holding

The trial court did not deny the Appellant a fair hearing; he neither entered appearance nor attended the hearing, and only appeared on the judgment date, which the magistrate could not be faulted for delivering as scheduled.

Reasoning

The record showed that as at 4th April 2019 when the Respondents testified, the 1st Defendant had neither entered appearance nor was present in court. His first appearance was on 10th May 2019, the judgment date. Without any affidavit substantiating the claim of improper service, the ground was unsubstantiated and failed.

p. 4
02

Deliberation on unpleaded issues

Holding

The trial court did not deviate from the pleadings and evidence; it determined the pleaded trust claim, and the Appellant's unparticularised allegation failed.

Reasoning

The Appellant never identified the issues allegedly not pleaded. From the record, the trial court dealt with the pleaded declaration of trust and the oral testimony of the Respondents and their witness. The Appellant filed no pleadings at trial, so the Respondents' facts remained uncontroverted and the court was entitled to act on them.

p. 4
03

Effect of an unsupported defence

Holding

The 2nd Defendant's defence, not supported by any testimony at trial, was not available for consideration by the court.

Reasoning

The Land Registrar filed a defence but, like the Appellant, did not participate in the trial or call evidence. Applying CMC Aviation Limited v Crusair Limited, pleadings are not evidence; averments depend upon evidence for proof of their contents, so the defence fell away.

p. 5
04

Proof of trust

Holding

On the uncontroverted evidence, the Respondents proved on a balance of probabilities that a trust was created in favour of the entire Mwaniki family when the property was transferred to the 1st Defendant and King'ori Kiboi.

Reasoning

PW3, an administrator of the estate of Mathew Wahome, testified to the deceased's intention to transfer 3.2 acres to the Mwaniki family. Though described as purchasers in the summons for confirmation of grant, no consideration passed between the Wahome family and the 1st Defendant, so he was not a purchaser but a trustee.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent conclusions, bearing in mind it did not hear the witnesses first hand.
  • Pleadings are not evidence; averments unsupported by testimony cannot be relied upon.
  • The burden of proof lies on the party who asserts the truth of the facts in dispute.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Costs of the appeal to the Respondents
On appeal from
Chief Magistrate's Court at Othaya (SRM ELC)
Othaya SRM ELC No. 1 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in land matters

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, "Kiboi v Waboi & another (Environment and Land Appeal 19 of 2019) [2024] KEELC 1040 (KLR)", Case Analysis (2024). Appeal from Othaya SRM ELC No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1040/eng@2024-02-29

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