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ELCDismissedBungoma ELC Appeal (memorandum of appeal dated 23rd January, 2023)· [2024] KEELC 4815 (KLR)

Marenga v Boit (Suing as the administrator of the Estate of Francis Boit Boiyo Kirong) (Environment and Land Appeal E030 of 2022) [2024] KEELC 4815 (KLR)

Environment and Land Court
20 June 2024
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court upheld a ruling that a family holds 9½ acres in trust for a buyer's widow, because the seller's son couldn't prove an unpaid balance.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Bungoma against the judgment of the Senior Principal Magistrate (Hon. T.M. Olando) delivered on 19th October 2022 in Bungoma MC ELC Case No. E010 of 2021. The respondent, administratrix of the estate of Francis Boit Boiyo Kirong, had sought a declaration that she was properly in occupation of 9 ½ acres out of land parcel E.Bukusu/W.Sang'alo/76 held in trust for her, plus transfer documents, costs and interest. She pleaded that the appellant's father, Marenga Nato, sold the 9 ½ acres to her late husband through several agreements between 1968 and 1988, and that the family had settled on and developed the portion. The appellant denied the claim, pleading limitation and want of Land Control Board consent. The trial court allowed the respondent's claim with costs. On appeal, E.C Cherono J, sitting as a first appellate court, applied Selle v Associated Motor Boat Co to re-evaluate the evidence. The court found the appellant had admitted the sale by his father, and that the agreements dated 05/05/1968, 05/05/1971, 17/07/1976 and 03/08/1986 cumulatively accounted for 9 ½ acres. The appellant's assertion of an outstanding balance of Kshs.935 was unsupported by any material, contrary to sections 107 and 108 of the Evidence Act on burden of proof and the balance-of-probabilities standard. The court held the trial magistrate did not misdirect himself, found the appeal lacking merit, and dismissed it with costs, affirming the trial court's judgment.

Key legal issues

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01

Whether the appeal against the trial court's judgment had merit

Holding

The appeal lacked merit; the trial magistrate correctly found that the respondent's deceased husband purchased 9 ½ acres and that the appellant holds that portion in trust for the respondent

Reasoning

The court re-evaluated the evidence as a first appellate court. It found the appellant admitted the sale by his father to the respondent's husband, and the four sale agreements (1968, 1971, 1976, 1986) cumulatively accounted for 9 ½ acres. The claim of an outstanding balance of Kshs.935 was unsupported by any material. The trial court's judgment was therefore grounded in evidence and law.

p. 4
02

Burden and standard of proof regarding the alleged unpaid consideration

Holding

The appellant, having alleged that a balance of Kshs.935 was outstanding, bore the burden of proving it but placed no material before the court

Reasoning

Applying sections 107 and 108 of the Evidence Act and cited authorities, the court held that he who alleges must prove and that civil claims are proved on a balance of probabilities. The assertion of an outstanding balance was unsupported and unclear as to which transaction it related to, so it could not displace the respondent's proved claim.

p. 4
03

Acreage sold under the various sale agreements

Holding

The agreements dated 05/05/1968, 05/05/1971, 17/07/1976 and 03/08/1986 collectively conveyed 9 ½ acres

Reasoning

The court analysed each agreement: six acres for Kshs.320/= (1968), one acre for Kshs.380/= (1971), one and a half acres for Kshs.930/= (1976) and one acre for Kshs.7,000/= (1986), totalling nine and a half acres as claimed by the respondent, matching the occupation and developments on the ground.

p. 4

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses
  • He who alleges must prove; the burden of proof in civil matters lies on the person who alleges
  • The standard of proof in civil cases is proof on a balance of probabilities

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The judgment of the trial court allowing the respondent's claim is upheld
On appeal from
Senior Principal Magistrate's Court, Bungoma
Bungoma MC ELC Case No. E010 OF 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (magistrates' court appeal in a land matter)

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, "Marenga v Boit (Suing as the administrator of the Estate of Francis Boit Boiyo Kirong) (Environment and Land Appeal E030 of 2022) [2024] KEELC 4815 (KLR)", Case Analysis (2024). Bungoma ELC Appeal (memorandum of appeal dated 23rd January, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4815/eng@2024-06-20

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