Kiboi v Waboi & another (Environment and Land Appeal 19 of 2019) [2024] KEELC 1040 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Natural justice and formal proof
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.
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.
Deliberation on unpleaded issues
The trial court did not deviate from the pleadings and evidence; it determined the pleaded trust claim, and the Appellant's unparticularised allegation failed.
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.
Effect of an unsupported defence
The 2nd Defendant's defence, not supported by any testimony at trial, was not available for consideration by the court.
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.
Proof of trust
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed in its entirety
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.