Boru & 4 others v Registered Trustees of Reedemed Gospel Church & another

i. Failing to hold that the Appellants had proved their case on a balance of probabilities. ii. Failing to analyze the entire evidence on record. iii. Failing to consider evidence tendered by the parties. iv. Failing to give reasons for her judgment. For those reasons, the Appellants prayed that their appeal be allowed. 3. There were three issues identied by the trial court for determination. They were. a. Whether the Plaintis were the legal proprietors of the suit parcels and in turn Plot No 26959 Redeemed Gospel Church? b. Whether the rst Defendant’s certicate of lease No 26959 is null and void? c. Whether the rst Defendant’s counterclaim should be allowed? In the end, the trial court found in favour of the Defendant and against the Plaintis. 4. Counsel for the parties led written submissions on 28/1/2022 and 5/4/2022. While the Appellants’ counsel faults the lower court’s decision, the Respondents’ counsel supports it fully. 5. I have carefully considered the appeal in its entirety including the grounds of appeal, the memorandum, the submissions by learned counsel and the law cited therein. This being a rst appeal, it is the duty of the court to review the evidence before the lower court and satisfy itself that the decision was well founded. In Selle and another v Associated Motor Boat Co Limited and others (1968) EA 123, this principle was enunciated thus; “ …this court is not bound necessarily to accept the ndings of fact by the court below. An appeal to this court… is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…” 6. Bearing in mind everything in paragraph 5 above, I make the following ndings on the four grounds of appeal dated 29/6/2021. 7. On the rst ground, I nd that the trial Magistrate did not err. It was incumbent upon the Plaintis to preponderate their case on a balance of probabilities. To do so, they had to prove that their letters of allotment for the suit plots were superior to the lease granted to Respondents. I nd that they did not prove that they had a better title to the land than the Respondent. The trial Magistrate was right in her nding that the Respondent’s lease was superior to the Appellants’ letters of allotment and that the lease should prevail over the allotment letters. In addition to the above nding, the Appellants were unable to prove that they complied with the conditions in the letters of allotment. Condition Number 2 of the said letters provided as follows. “ The council may repossess (without compensation) any plot that remains underdeveloped two (2) years after allocation”. From the evidence and the pleadings, the only thing that the Appellants had on the land was the live fence. They had not developed them as required by the letter of allotment. Without complying with the letter of allotment, they have not proved their case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16591/eng@2023-03-28 2

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8. On the second ground of appeal, I nd that the trial Magistrate did not err. The evidence on record was very scanty. All that the Plaintis did at the trial was to produce their letters of allotment and receipts to show that they paid rates. There was no other evidence from their end. This evidence is analyzed at page 2 of the Judgment especially in paragraphs 2 and 3. This evidence is also analyzed at pages 3, 4 and 5 of the judgment. This nding also covers the third and fourth grounds. In summary, I nd that the judgment by trial Magistrate was well balanced as it considered all the relevant issues and the Magistrate made the right conclusions both in law and in fact. For the above stated reasons, I nd no merit in the appeal and I dismiss it with costs to the respondents. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MARCH, 2023. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16591/eng@2023-03-28 3

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