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ELCAllowedNot stated in the judgment· [2024] KEELC 6766 (KLR)

Presbeta Investment Limited v Kamau & another (Environment and Land Appeal E047 of 2022) [2024] KEELC 6766 (KLR)

Environment and Land Court
15 October 2024
1,247 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 Kajiado restored a landowner's title, ruling that anyone claiming land from an owner must prove how they lawfully acquired it.

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 Kajiado from the judgment of the learned trial Magistrate in Chief Magistrate Court at Kajiado MC ELC E025/2022 delivered on 28/9/2022, dismissing the appellant's suit with costs on the ground that its case, particularly the particulars of fraud, was not proved to the required standard. The appellant, which owned L.R. No. Kajiado/Lorngusua/1836 measuring 125 acres intended for subdivision into 442 quarter-acre plots, alleged that the 1st respondent, together with the appellant's then chairman and treasurer, created seven additional plots without the appellant's knowledge or authority, the suit parcel L.R. Kajiado/Lorngosua/6598 being one of them, obtained unlawfully, irregularly, unprocedurally and through a corrupt scheme. The appeal was anchored on twelve grounds. Guided by Selle v Associated Motor Boat Company Limited on the duties of a first appellate court, M.N. Gicheru J treated the twelve grounds as the issues and found that the appellant had proved ownership of the parent parcel and that it never sold or transferred the suit parcel to the 1st respondent; the burden thereby shifted to the 1st respondent to explain his acquisition, which he failed to do, having entered appearance neither nor filed a defence. The court found no extraneous considerations by the trial Magistrate but faulted the omission of the 2nd respondent's defence from the judgment contrary to Order 21 rule 4 and the absence of any record of hearing-notice service on the 2nd respondent under Order 12 rule 2. Allowing the appeal, the court set aside the trial judgment and decree and substituted judgment in terms of the plaint dated 8/3/2022, with costs of the appeal and the lower court to the appellant.

Key legal issues

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01

Standard of proof on a first appeal and burden of proof on unexplained acquisition of title

Holding

The appellant proved ownership and non-transfer of the suit parcel to the required standard; the burden shifted to the 1st respondent, who entered no defence and offered no proof, so the appellant's case succeeded

Reasoning

The court, as a first appellate court, re-evaluated the evidence and found the appellant proved ownership of the parent parcel L.R. 1836 and that it never sold or transferred the suit parcel. With no defence by the 1st respondent, the burden of explaining and proving lawful acquisition rested on him and was not discharged. This finding disposed of grounds two to ten.

p. 3
02

Compliance with Order 21 rule 4 and Order 12 rule 2 of the Civil Procedure Rules

Holding

The trial Magistrate erred in failing to capture the 2nd respondent's defence in the judgment and in the absence of record of service of a hearing notice on the 2nd respondent, but this did not alter the outcome given the 1st respondent's non-participation

Reasoning

The court found no extraneous matters were considered (ground eleven) but noted the judgment omitted the 2nd respondent's defence contrary to Order 21 rule 4, and there was no record of service of a hearing notice under Order 12 rule 2. Nevertheless, the key player having not defended the suit, a finding for the appellant was the only possible outcome.

p. 3

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses
  • Where a proprietor's ownership of the parent parcel is proved and no transfer to the defendant is proved, the burden shifts to the defendant to explain how he lawfully acquired the suit land
  • A judgment in a defended suit must contain a concise statement of the case, the points for determination, the decision and the reasons

Court orders

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  1. 1.The appellant's appeal is allowed
  2. 2.The judgment and decree of the trial Court in Chief Magistrate Court at Kajiado MC ELC E025/2022 dated 28/9/2022 is set aside and substituted with a judgment in terms of the plaint dated 8/3/2022
  3. 3.The costs of this appeal and those of the Lower Court awarded to the appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 4
  • Civil Procedure RulesOrder 12 rule 2

Cases cited (1)

  • Selle -versus- Associated Motor Boat Company Limited
    (1968) EA 123
On appeal from
Chief Magistrate's Court at Kajiado
MC ELC E025/2022
Jurisdiction invoked
First appeal to the Environment and Land Court

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, "Presbeta Investment Limited v Kamau & another (Environment and Land Appeal E047 of 2022) [2024] KEELC 6766 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6766/eng@2024-10-15

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