Ezekiel Amaisа v Benjamin Kirwa

(b) Goods or personal property; or……….’ 2. On that account, the property in dispute in the instant appeal is the destroyed sugarcane crop on land parcels namely EMIT 218 and 234 (The suit parcels of land herein) in Kimwani area. 3. The appeal was provoked by the trial court’s judgment delivered on 17th February 2026 (Hon MUHANDA S. ASHITSA, SRM) held thus; ‘ From the evidence on record, the court is not persuaded that it is the defendant who destroyed the Plaintiff’s sugarcane………………………. Unfortunately, the Plaintiff has not failed to prove on balance of probability that the sugarcane crop destroyed was his and that it is the defendant who destroyed the crop and the claim has to fail. Consequently, the claim is dismissed with costs to the defendant.’ 4. Being aggrieved with the whole judgment and decree of the Honourable, the appellant who appears in person and previously represented by Yuri Law and Associates Advocates, filed the appeal by way of memorandum of KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 2

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appeal dated 23rd February 2026 anchored upon nine grounds namely; (a) THAT the learned trial magistrate erred in law and in fact in dismissing the Appellant's claim despite expressly finding that the sugarcane crop had been destroyed and that the loss had been properly assessed at Ksh 711,900/=. (b) THAT the learned trial magistrate erred in law in holding that the Appellant had failed to prove ownership of the destroyed crop while disregarding the uncontroverted evidence on record including allotment letters, agricultural report, and oral testimony. (c) THAT the learned trial magistrate misdirected herself on the burden and standard of proof under Section 107 of the Evidence Act by applying a standard higher than proof on a balance of probabilities. (d) THAT the learned trial magistrate erred in law and fact in failing to properly evaluate the circumstantial evidence linking the Respondent to the destruction of the crop. KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 3

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(e) THAT the learned trial magistrate erred in failing to draw an adverse inference against the Respondent in view of the evidence placing his household on the suit land. (f) THAT the learned trial magistrate contradicted herself by acknowledging entitlement to the assessed compensation but damage and nevertheless dismissing the claim. (g) THAT the learned trial magistrate failed to properly analyze the totality of the evidence and submissions presented by the Appellant. (h) THAT the learned trial magistrate erred in awarding costs to the Respondent despite clear findings that destruction of crop occurred. (i) THAT the Judgment is against the weight of evidence on record. 5. So, the appellant has sought the following orders; a) The Appeal be allowed. KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 4

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b) The Judgment and Decree of the Magistrate's Court delivered on 17th February 2026 be set aside. c) Judgment be entered for the Appellant as prayed in the Plaint for Ksh 711,900/= together with interest. d) Costs of this Appeal and of the proceedings in the lower court be awarded to the Appellant. e) Such further or other orders as this Honourable Court may deem just. 6. The appeal was heard by written submissions further to directions of the court given on 22nd September 2026. 7. The appellant filed submissions dated 23rd September 2026 reference was made to, inter alia, the impugned judgment, the memorandum of appeal and framed issues for determination including whether this court has jurisdiction over this appeal, whether the trial court applied the burden in civil cases, properly evaluated the evidence linking the respondent to the destroyed sugar cane. The appellant submitted that his testimony related his evidence on the house and a wife found on the suit parcels of land immediately after the destruction to the respondent. That KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 5

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testimonies of the agricultural officer (PW2) who produced his assessment of the destroyed crop at Kshs 7119,900/- as per the report dated 11th June 2024 (PExhibit 1) and the police officer, PC Enos Juma corroborated his testimony. 8. To fortify the submissions, the appellant relied on the case of Selle and another vs Associated Motor Boat Company Ltd and others (1968) EA 123 on the mandate of an appellate court to re-evaluate evidence, the case of Cooperative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 others [KECA} 79 (KLR) and Article 162 (2) (b) of the Constitution of Kenya 2010 on the jurisdiction of this court over the appeal. 9. In conclusion, the appellant submitted that this court has the jurisdiction to entertain the appeal. That the respondent was linked to the destroyed sugarcane and that the appeal be allowed as sought in the memorandum of appeal. 10. The respondent represented by Duncan Tallam and Company Advocates filed no submissions in this appeal. 11. At the trial court, the appellant instituted the suit by a plaint dated 26th February 2024 against the respondent KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 6

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mainly for orders of compensation for the damaged sugarcane at Kshs 711,900/- and costs of the suit. 12. The respondent who was the defendant in the suit, denied the appellant’s claim and subjected him to proof the same. 13. The learned trial magistrate did receive the evidence of the appellant (PW1) who referred to two allocation letters 9PMFI 2 and 3), Agricultural development Corporation Farm Map and Plot Allotees Booklet (PMFI 4 and 5 respectively). He also called Abel Kikogei (PW2) the agricultural officer, Chemilil -Chemase Ward (PW2) who produced phographs (PExhibit 12 9a) to (12) and No. 229401 PC Enos Juma (PW3) attached to Mberere Police Post who accompanied PW2 to the site. 14. The trial court set out the pleadings, framed issues and arrived at the impugned judgment based on reasons. On that score, she complied with Order 21 rule 4 of the Civil Procedure Rules 2010 in such cases. 15. The instant appeal being the first one from the trial court, I have the jurisdiction to review the evidence of the KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 7

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trial court in order to determine whether the conclusion originally reached upon that evidence should stand. However, this is a jurisdiction which should be exercised with caution; see Selle (supra) and Peters-vs-Sunday Post (1958) EA 424 at 429. 16. In that regard, this Court considers the evidence of PW1, PW2 and PW3, the memorandum of appeal and the appellant’s submissions in entirety. The issues for determination are as captured in the memorandum of appeal inclusive of ownership of the destroyed crop, circumstantial evidence and adverse inference on the suit land, assessment of damages and award of costs thus, condensed to whether the appeal is tenable. 17. On ownership of the sugarcane crop, the trial court noted; ‘The Plaintiff submits that allotment letters and area map prove his ownership. The allotment letters were only marked for identification. Even if the court was to consider ownership as per the allotment letters, the name captured therein is not the Plaintiff’s. If the Plaintiff purchased the plots from the KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 8

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original allottees, he ought to have produced a sale or lease agreement to prove land ownership.’ 18. Further, the learned trial magistrate observed as follows; ‘The Plaintiff has not produced ownership documents or called any witnesses to prove that he owned the land or the damaged crop. ‘ 19. On his part, PW2 stated in examination in chief that; ‘….Visited the land on 11/06/2024. The plot number was wrongly captured as 1234 but it is 218….’ 20. It is important to note that, PMFI 2, 3 and 5 are not in evidence to confirm ownership of the sugarcane alongside the suit parcels of land. PW1 testified that he had no documents regarding purchase of the suit parcels of land as captured in the proceedings and the impugned judgment. 21. As regards link of the respondent to destruction of the sugarcane, there has to be proper evidence and technical KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 9

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evaluation when proving trespass to land and crop damage; see also Mboo vs Muthengi [2025] KEELC 702 (KLR) 22. Notably, PW1 did not witness the destruction of the sugarcane on the suit parcels of land. The trial court observed; ‘The Plaintiff admits in his evidence that he was called that his sugarcane had been destroyed. Meaning he never witnessed the destruction. The Plaintiff called PW2 and PW3 who admitted that they never witnessed the destruction but they visited the farm after the crop had already been destroyed. They admitted that they don’t know who destroyed the crop.’ 23. Further, the court noted the appellant stated that it was the respondent who destroyed the sugarcane crop because he found a house had been constructed on the suit parcels of land. That in the house we a woman who introduced herself as the wife of the respondent. That thus, the appellant drew and inference that it was the respondent who had destroyed his crop.’ 24. Furthermore, the trial court reasoned; KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 10

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‘Other than his evidence, the Plaintiff has not produced any document to prove it is the defendant who destroyed the crop. The Plaintiff has not called any witness to confirm that the defendant destroyed the crop, the house belonged to the defendant and/or the woman in the house was defendant’s wife.’ 25. In Halsbury’s Laws of England 4th Edition volume 45 paragraph 26 at 1503, it is stated that computation of damages in action for trespass including recovery of nominal damages even if there is no actual loss. That general damages may be increased in aggravating circumstances. 26. The appellant claimed Kshs 711,900/- damages against the respondent. The said amount is contained in PExhibit 6 which was produced by PW2. 27. and Plainly, special damages must be specifically pleaded strictly proved with as much particularity as circumstances permit, avoiding mere speculation; see also Capital Fish Kenya Limited vs The Kenya Power and Lighting Company Limited (2016) eKLR. KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 11

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28. In the instant matter, the appellant simply claimed the figure of Kshs. 711,900/= as assessed by PW2 before the court. He did not render substantial proof of actual loss linking the respondent to the destroyed sugarcane. It remains mere speculation. 29. It is trite law that the burden was always on the plaintiff to prove his case on the balance of probabilities and that such burden is not lessened even if the case was heard by way of formal proof; see Kirugi & another vs Kabiya & 3 others (1987) KLR 347. 30. In the original suit, the appellant failed to establish his claim against the respondent on a balance of probability. So, the learned trial magistrate correctly applied the facts, the evidence and legal principles in reaching her finding. 31. In the circumstances, I find no iota of reason to disturb the well-reasoned decision of the learned trial magistrate. The appeal must fail as I proceed to uphold the impugned judgment accordingly. 32. Thus, the entire appeal originated by way of the memorandum of appeal dated 23rd February 2026 is devoid KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 12

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of merit. The same is hereby dismissed with costs to the respondent. 33. It is so ordered. DATED and DELIVERED at KAPSABET this 30TH day of SEPTEMBER 2026. HON. G.M.A. ONGONDO JUDGE In the presence of; 1. The appellant in person 2. Mr Tallam learned counsel for the respondent 3. Walter and Emmaculate, court assistants KAPSABET ELCLA NO. E005 OF 2026 JUDGMENT 13

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