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ELCDismissedNotice of Motion dated 31st May 2014 (as stated in the judgment; also referred to as dated 31st May 2024)· [2024] KEELC 6806 (KLR)

Gaita v Karanga (Environment & Land Case E012 of 2024) [2024] KEELC 6806 (KLR)

Not stated in the judgment
17 October 2024
JOJ. O. Olola
1,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's bid to force a neighbour to reopen a claimed public road because he offered no evidence it existed.

What this practically means

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Executive summary

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By a Notice of Motion dated 31st May 2014 (elsewhere referred to as 31st May 2024), Tito Theuri Gaita, acting in person, sought an order compelling Rose Wachuka Karanga to reopen a public road allegedly passing through Government Land Parcel No. Mweiga/Gakanga/206, which she had allegedly closed in October 2023, with a default order for the local administration and the OCS Endarasha Police Station to reopen it. He also sought to stop the Respondent and her unnamed sons from harassing road users. The Respondent, also acting in person, averred she lawfully occupied the land since 1985, denied closing any public road, and explained that following flooding in April 2014 she had only diverted flood water, accusing the Applicant of malice. The court found that although the Applicant asserted the existence and closure of a public road, he produced no evidence in support, while the Respondent's annexures, including a letter dated 24th April 2016 from the Gakanga sub-Location Assistant Chief, showed an adjacent road remained open and that the Respondent lawfully occupied the land awaiting issuance of titles. Applying Section 107(1) of the Evidence Act on the burden of proof, the court also found the harassment allegations unproved, the alleged sons being unnamed. Concluding the application was actuated by malice and ulterior purposes, J. O. Olola, Judge, dismissed the motion with costs to the Respondent on 17th October 2024 at Nyeri.

Key legal issues

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01

Whether the Applicant discharged the burden of proving closure of a public road on the suit property

Holding

The application failed because the Applicant adduced no evidence of the road's existence or its closure by the Respondent

Reasoning

The court held that despite contending that a public road existed on the suit property and had been closed, the Applicant provided no tangible evidence. Annexures to the Respondent's Replying Affidavit, including a letter from the Assistant Chief dated 24th April 2016, showed a road adjacent to the property remained open and that the Respondent lawfully occupied the land awaiting title processing. Section 107(1) of the Evidence Act places the burden of proof on the party asserting the facts.

p. 2
02

Whether the alleged harassment by the Respondent's sons was proved

Holding

The claim failed as the sons were unnamed and no evidence linked any harassment to the Respondent's instructions

Reasoning

The court noted that the Applicant alleged the Respondent's sons harassed and threatened road users, but the names of the alleged sons were never given, and no evidence established that they were acting on the Respondent's instructions. Without such proof the allegation could not stand.

p. 3

Legal principles established

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  • He who alleges must prove the facts he asserts; the burden of proof lies on the party desiring the court to give judgment on a legal right or liability dependent on those facts

Court orders

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  1. 1.The Motion dated 31st May 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Evidence Act (Cap 80 of the Laws of Kenya)Section 107(1)
Jurisdiction invoked
Original civil jurisdiction (not stated in the 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, "Gaita v Karanga (Environment & Land Case E012 of 2024) [2024] KEELC 6806 (KLR)", Case Analysis (2024). Notice of Motion dated 31st May 2014 (as stated in the judgment; also referred to as dated 31st May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6806/eng@2024-10-17

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