Kemoli v Mulemi (Environment and Land Appeal E004 of 2023) [2024] KEELC 3883 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Capacity of a witness testifying under a Power of Attorney
The witness had capacity to testify for the appellant; the trial court erred in finding the evidence of no probative value.
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.
Proof of ownership of Plot No. 6 and trespass by the Respondent
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.
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.
Whether an order for retrial before a different magistrate was warranted
No retrial was warranted as the trial was not shown to have been unsatisfactorily conducted.
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.
Legal principles established
#- 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
#- 1.The judgement of the trial court is upheld
- 2.The appeal is dismissed with costs to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.