Kamau v Embakasi Ranching Company Limited (Environment and Land Appeal E037 of 2021) [2025] KEELC 6367 (KLR)

plaintifi’s pleadingsThe lower court erred in law and fact by ignoring clearly the pleadings, the evidence and the submissions therein filed by the plaintifi without any basis in law and factThat the lower court in its finding erred in fact and in law by considering issues that were not pleaded by the parties in their pleadings nor adduced in evidence thus efiectively bending/distorting the rules of law and natural justice. 5. Reasons wherefore the Appellant prays for the following orders; a. The entire judgement and the subsequent decree of the lower court in CMCC No 1145 of 2018 between Joseph Wanyoro Kamau versus Embakasi Ranching Company Limited be and is hereby set aside and that the suit in the lower court be allowed as pleaded in the plaint dated the 14th February 2018 b. That the costs in the lower court and in the appeal be awarded to the appellant /defendant 6. The Appeal was undefended. On 25th September 2024 the court directed that the appeal be canvassed by way of written submissions. 7. This being a first appeal, this court is under a duty to reconsider the evidence adduced and analyze it so as to be able to reach its own independent conclusions and thus determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law, and will only depart from the findings by the trial Court if they were not based on evidence on record or where the said Court is shown to have acted on wrong principles of law or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah (1968) EA 93 8. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court held that: this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefiy 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. 9. An appellate Court would not normally interfere with exercise of the discretion of the lower court unless it has not been exercised judiciously. As to what the term “discretion” means the Court in The Supreme Court of Uganda, in Kiriisa v Attorney-General and Another [1990-1994] EA 258 stated that: “Discretion simply means the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable and reasonable in those circumstances.” That discretion being wide, the main issue before this court is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules of procedure” 10. Having considered the memorandum of appeal, the submissions and the proceedings before the lower court the issue for determination is whether the appeal is warranted. In considering this the court will consider whether the Appellant proved that he was entitled to the prayers sought in the lower court which were declaratory orders that the suit properties belong to him, mesne profits and compensation for the loss incurred by being allocated properties which were non-existent. 11. Although the Plaintifis case was unchallenged and uncontroverted, the Plaintifi still has to discharge the burden of proof as envisaged by Sections 107 and 108 of the Evidence Act which define the Burden of Proof thus; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6367/eng@2025-05-08 2

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107. 108. Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Incidence of burden The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 12. In the case of Kenya Power & Lighting Company Limited…Vs…Nathan Karanja Gachoka & Another [2016] eKLR, the Court stated “I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintifi must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’ The same sentiments have been echoed in the case of Gichinga Kibutha…Vs…Carooline Nduku (2018) eKLR “It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’ 13. The burden was therefore on the Plaintifi/Appellant to establish that he was entitled to the declaratory orders sought, the orders for mesne profits and for loss of bargain. 14. The Plaintifi averred that he had purchased the suit properties vide the share certificates. This argument was discounted by the learned magistrate on the grounds that the Plaintifi by his own admission conceded that the plots were non existent with the only evidence of such transaction being the share certificates, which in any event were in the names of other persons. 15. Given that the Plaintifi was claiming to be a bona fide purchaser, it is critical to consider whether he met the elements for a bona fide purchaser for value so clearly laid out in the Court of Appeal decision of Samuel Kamere v. Lands Registrar, [Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR]. The court stated; “…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property…” 16. Due diligence includes visiting the site property and verifying that it exists. The Appellants own admission that the plots were none existent is a clear indication he missed this vital step. In view of the fact that the Appellant transacted on non-existent land, the learned magistrate’s findings cannot be faulted. I therefore find that the appeal has no merit and is dismissed with no orders as to costs. JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH DAY OF MAY 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Isaac Aloo for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6367/eng@2025-05-08 3

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