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ELCDismissedELC Appeal (Machakos) arising from Machakos CMCC No 897 'A' of 2012· [2024] KEELC 5452 (KLR)

Kasongo v Aimi Ma Kilungu Limited & 2 others (Environment and Land Appeal 57 of 2018) [2024] KEELC 5452 (KLR)

Environment and Land Court
24 July 2024
ANA. Nyukuri
2,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos dismissed a son's claim that his late father held family land in trust for him because he offered no proof.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Machakos against the judgment of Chief Magistrate Kibiru A. G delivered on 7th August 2018 in Machakos CMCC No 897 'A' of 2012. The suit was filed by Malitina Mutu Kasongo against Aimi Ma Kilungu Limited and her son Ambrose Musau Kasongo, seeking injunctions against trespass and a mandatory injunction compelling transfer of Agricultural Plot No 1397 at Yoani Mukaa to Jabe Investment Limited, the interested party. The 2nd defendant counterclaimed, asserting that his late father Maxim Kasongo Kimundi had held the suit property and plot 1490 in trust for him, that the plaintiff had fraudulently transferred the property without a grant, and seeking declaration that the parcels were his or formed part of the deceased's estate. The trial court dismissed the counterclaim, found the interested party an innocent purchaser for value, and allowed the plaintiff's claim. The appellant appealed on seven grounds, contending that the trial court ignored his evidence, the clan meeting minutes and the absence of a proper sale agreement. The parties filed written submissions. Applying the first appellate court's duty to re-evaluate the evidence and section 107 of the Evidence Act on burden of proof, the court found no evidence supporting the alleged trust, and noted the 1st respondent's membership card and allotment letter establishing ownership. The court dismissed the appeal with costs to the respondents on 24th July 2024.

Key legal issues

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01

Whether the trial court erred in dismissing the appellant's counterclaim

Holding

The appeal was dismissed; the appellant failed to prove that the suit property was held in trust for him by the deceased

Reasoning

The appellant claimed his father held share No 1768 and plots 1397 and 1490 in trust for him after he gave money for the share. The court found no evidence, receipts or written agreement supported this. The 1st respondent produced a membership card dated 27th October 2001 and an allotment dated 26th July 2006 showing lawful ownership, so the trial court's findings stood.

p. 5
02

Whether the 1st respondent's claim was properly allowed, the interested party being an innocent purchaser for value

Holding

The court affirmed the trial court's finding that the 1st respondent lawfully owned the suit property and validly sold it to the interested party

Reasoning

The 1st respondent produced a membership card and allotment letter showing she balloted for plots 1397 and 1490. Respondents submitted the sale to the interested party satisfied section 3(3) of the Law of Contract Act and no confirmed grant was needed since the property belonged to the 1st respondent at the time of sale. The court found no evidence to the contrary from the appellant.

p. 6

Legal principles established

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  • On a first appeal the court must reassess and reanalyse the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses
  • The burden of proof in a suit lies on the plaintiff who must prove allegations of trust on a balance of probability

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondents

Authorities

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Legislation

  • Evidence ActSection 107
  • Law of Contract Act (Cap 23)Section 3(3)

Cases cited (3)

  • Selle & another v Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Titus Muiruri Doge v Kenya Conners Ltd
    (1988) eKLR
On appeal from
Chief Magistrate's Court, Machakos
CMCC No 897 'A' of 2012
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (trial court) judgment

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, "Kasongo v Aimi Ma Kilungu Limited & 2 others (Environment and Land Appeal 57 of 2018) [2024] KEELC 5452 (KLR)", Case Analysis (2024). ELC Appeal (Machakos) arising from Machakos CMCC No 897 'A' of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5452/eng@2024-07-24

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