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ELCDismissedMemorandum of Appeal dated 20th March 2023, arising from Vihiga SPMC ELC No. 30 of 2018· [2024] KEELC 3883 (KLR)

Kemoli v Mulemi (Environment and Land Appeal E004 of 2023) [2024] KEELC 3883 (KLR)

Environment and Land Court
25 April 2024
2,679 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed Richard Kemoli's land appeal because he couldn't prove the plot he claimed was actually the one occupied by the respondent.

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 Vihiga against the judgment of the SPM's Court in Vihiga SPMC ELC No. 30 of 2018, which had dismissed the appellant's claim for vacant possession of plot No. 6 Chavakali Market and general damages. The appellant, who was the plaintiff, had sued for eviction of the respondent and general damages, alleging trespass. The trial court dismissed the suit, holding that the appellant had failed to prove his case on a balance of probabilities, particularly that plot No. 7 occupied by the respondent had been changed to plot No. 6. On appeal, the court applied the retrial standard for first appeals from Selle v Associated Motor Boat Company Ltd. On the Power of Attorney issue, the court held that the witness Kennedy Akidiva Sagala had capacity to testify on the appellant's behalf under Order 9 Rule 2(a) of the Civil Procedure Rules, since the appellant confirmed donating authority to him, notwithstanding that the power of attorney was unregistered and court approval was not expressly sought. The court held that Order 9 Rule 2(c) relied on by the appellant applies only to corporations. On the substantive claim, the court found the appellant's documents related to plot No. 6 while the respondent's documents, including the sale agreement of 15th August 2005, related to plot No. 7, and there was no evidence of any change of plot numbers. Applying sections 107, 108 and 109 of the Evidence Act, the court held the appellant failed to discharge the burden of proof. The prayer for retrial before another magistrate was refused as no unsatisfactory trial was demonstrated. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Capacity of a witness testifying under a Power of Attorney

Holding

The witness had capacity to testify for the appellant; the trial court erred in finding the evidence of no probative value.

Reasoning

Order 9 Rule 1 allows a party to act through a recognized agent. Order 9 Rule 2(a) permits persons holding a power of attorney or an affidavit authorizing them to act on behalf of a party, subject to the court's approval. Although approval was not expressly sought, the appellant confirmed he donated authority to the witness, who therefore had capacity to testify on the appellant's behalf.

p. 4
02

Proof of ownership of Plot No. 6 and trespass by the Respondent

Holding

The appellant failed to prove ownership of the plot the Respondent occupied or the alleged change of plot numbers; the claim failed on the burden of proof.

Reasoning

The appellant's documents related to Unsurveyed B.C.R. Plot No. 6 Chavakali Township, while the Respondent's documents, including the sale agreement of 15th August 2005, related to Plot No. 7. There was no evidence from the allocating authority, councils or lands office that plot numbers were changed. Sections 107, 108 and 109 of the Evidence Act place the burden of proving the asserted facts on the appellant, which he failed to discharge.

p. 5
03

Whether an order for retrial before a different magistrate was warranted

Holding

No retrial was warranted as the trial was not shown to have been unsatisfactorily conducted.

Reasoning

Relying on Jackson Mwangi Gatama v Kenya Wildlife Services, retrial orders are made where the appellate court finds the trial was not conducted satisfactorily. No such defect was demonstrated in this case, so the alternative prayer for retrial before another magistrate was refused.

p. 5

Legal principles established

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  • A person holding an affidavit or power of attorney authorizing him to act on behalf of a party may do so subject to the approval of the court, and where the party confirms the donation of authority, the witness has capacity to testify for him.
  • Order 9 Rule 2(c) on recognized agents applies only to corporations, not natural persons.
  • The burden lies on the party who asserts a change of plot numbers to prove it; the appellant failed to discharge that burden.
  • An order for retrial is only made where the appellate court finds the trial was not conducted satisfactorily.

Court orders

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  1. 1.The judgement of the trial court is upheld
  2. 2.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 9 Rule 2(a)
  • Civil Procedure RulesOrder 9 Rule 2(c)
  • Evidence Act, Cap 80 Laws of KenyaSections 107, 108 and 109

Cases cited (3)

  • Selle & another vs Associated Motor Boat Company Ltd & Another
    (1968) IEA 123
  • Francis Mwangi Mugo –vs- David Kamau Gachugu
    [2017] eKLR
  • Jackson Mwangi Gatama v Kenya Wildlife Services
    [2018] eKLR
On appeal from
SPM's Court Vihiga
Vihiga SPMC ELC No. 30 of 2018
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court (appellate jurisdiction over subordinate court decision)

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, "Kemoli v Mulemi (Environment and Land Appeal E004 of 2023) [2024] KEELC 3883 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 20th March 2023, arising from Vihiga SPMC ELC No. 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3883/eng@2024-04-25

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