Esther Mugure Kiriga v David Kimani Kiriga & 1 other

Company Limited which she co-owns with her husband. She stated that they paid for the containers in three instalments and that receipts were issued. She added that the deceased had permitted the installation of the containers adjacent to his premises. 4. The Respondents, on the other hand, claimed that their deceased father financed the purchase of the containers by giving the Appellant Kshs. 1.2 million in cash and that they took over the containers and began collecting rent after his death on 22nd May 2020. 5. In her counterclaim, the Appellant sought a declaration of ownership, a permanent injunction restraining the Respondents from dealing with the containers, an account of rent collected from June 2020 to date, and costs. 6. After hearing the case, the trial court held that the containers formed part of the estate of the deceased since they were purchased using funds provided by him (the deceased). The Appellant’s counterclaim was consequently dismissed thereby setting the stage for the instant appeal. The Appeal 7. The Appellant filed this appeal challenging the entire judgment and decree of Hon. B. M. Cheloti delivered on 24th June 2024, which allowed the Respondents’ suit and dismissed the Appellant’s counterclaim dated 22nd March 2021. 8. The appeal is premised on the grounds that the learned magistrate erred in law and fact by ignoring and disregarding her documentary and testimonial evidence; Misapplying the principles of burden and standard of proof; and erroneously concluding that the containers formed part of the deceased’s estate despite clear proof of purchase by the Appellant. 9. The Appellant seeks orders that the appeal be allowed, that the impugned judgment and consequential orders be set aside; that her counterclaim be allowed as prayed; and that costs of the appeal be awarded to her. 10. The Appeal was canvassed by way of written submissions which I have considered. The Appellant’s Case 11. The Appellant contended that she lawfully purchased the containers in January 2018 from Container World Kenya Ltd at a total cost of Kshs. 1,150,000, paid in three instalments by cheques drawn from the joint account of Joserus Electricals Company Limited, where she and her husband are directors and shareholders. She produced the company’s bank statement, receipts dated 29th January 2018, 31st January 2018, and 5th February 2018, and the title documents issued in her name. 12. She maintained that the deceased did not finance the purchase, but merely allowed her to install the containers on property adjacent to his Eastleigh plot. The Appellant argues that the Respondents’ case rested on hearsay as no documentary proof or direct witness evidence was adduced to support the alleged cash handover of Kshs. 1.2 million. 13. The Appellant relied on Sections 107–109 of the Evidence Act, asserting that the legal and evidential burdens rested upon the Respondents who alleged the deceased funded the purchase. She further cited Section 143 of the Evidence Act, emphasizing that no particular number of witnesses is required to prove a fact. 14. On the issue of rent, she conceded that the deceased collected rent from the containers before his death but maintained that it was by mutual family arrangement, not as evidence of ownership. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 2

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15. She prayed that the appeal be allowed, the judgment set aside, and the counterclaim reinstated declaring her the rightful owner of the containers. The Respondents’ Case 16. The Respondents, as legal representatives of the estate of Kiriga Githuba (deceased), maintained that the containers were purchased using funds provided by the deceased. They relied on the testimony of PW1 who claimed that he witnessed the deceased hand Kshs. 1,200,000 in cash to the Appellant at their Kimende home to purchase the containers. 17. They further noted that the Appellant’s own bank statement for Joserus Electricals Company Limited reflects four deposits between 29th January and 5th February 2018 totalling Kshs. 1.2 million, all made at the Kimende branch, which coincided with the alleged cash handover. The Respondents submitted that the Appellant failed to explain why deposits were made at a branch she did not ordinarily transact through, given that her business operated in Nairobi’s CBD and that her residence was in Lavington. 18. The Respondents also rely on evidence by PW3, James Wanderi, a director of Jimly Properties Limited, who testified that the deceased instructed him to collect rent from the containers and remit it to his account. The tenants allegedly recognized the deceased as the landlord, and that at one point the deceased threatened to evict tenants who failed to pay rent directly to him. 19. They contended that the Appellant’s explanation was implausible and that her failure to call her husband, James Maina Mwangi, a co-director of Joserus Electricals, weakened her case. They cited the principle from Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, where the Court of Appeal held: “ When a registered proprietor’s root of title is under challenge, it is not sufficient to merely dangle the instrument of title; the proprietor must go beyond it and demonstrate the legality of how he acquired the title.” 20. According to the Respondents, the Appellant failed to discharge this evidential burden. They also relied on Paramount Bank Ltd vs. First National Bank Ltd [2023] KECA 1424 (KLR) and Chemomi Tea Estate vs. Bonfas Shoya [2018] eKLR, reiterating that the standard of proof in civil cases is on a balance of probabilities. 21. They urged the Court to uphold the lower court’s decision and dismiss the appeal with costs. Issues for Determination 22. Upon careful consideration of the record and submissions, I find that the following issues arise for determination: a. Whether the deceased funded the purchase of the suit containers; b. Whether the Appellant discharged her burden of proof to establish ownership; c. Whether the trial court misdirected itself in its findings; and d. What orders should issue as to costs. Analysis and Determination 23. This being a first appeal, I am cognizant of this court’s duty to re-evaluate, re-assess and re-analyse the evidence on record and draw its own independent conclusions, while bearing in mind that it did not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 3

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see or hear the witnesses testify. This classic statement of principle is in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal held that an appeal to the first appellate court is by way of a retrial and that the appellate court is not bound to accept the findings of fact by the trial court if they are not supported by the evidence or are based on a misapprehension of the evidence. (a) Whether the deceased funded the purchase of the suit containers 24. It was not disputed that the two containers TRLU 6644836 and TRLU 6613460 were acquired in early 2018 and installed on land adjacent to the deceased’s Eastleigh premises. The parties’ point of divergence was the source of the funds for their purchase. 25. The Respondents’ case was that the deceased handed Kshs. 1,200,000, in cash, to the Appellant at Kimende for the purchase of the containers. This was said to have been witnessed by PW1. It is however instructive to note that no written acknowledgement, bank withdrawal slip, loan agreement, or any contemporaneous record of this alleged payment was produced. 26. The Appellant, on the other hand, produced bank statements of Joserus Electricals Company Limited, three receipts from Container World Kenya Ltd dated 29th January 2018, 31st January 2018 and 5th February 2018, and documentation evidencing that the containers were registered/allocated in her name. These payments were made by cheques drawn on the Appellant’s company’s account. 27. The gist of the Respondents’ case was that because four deposits totalling Kshs. 1.2 million were made into the Joserus Electricals account at the Kimende branch between 29th January and 5th February 2018, and because the Appellant did not ordinarily transact in Kimende, those deposits must have been the very cash the deceased allegedly gave her. 28. My view is that the Respondent’s reasoning, rests on inference rather than proof. The law on the burden of proof in civil cases is clear. Section 107(1) of the Evidence Act provides that whoever desires a 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. Sections 108 and 109 of the Evidence Act further provide that the burden lies on the person who would fail if no evidence at all were given, and that the burden of proving a particular fact lies on the person who wishes the court to believe in its existence. 29. My take is that it was incumbent upon the Respondents, as plaintiffs before the trial court, to prove, on a balance of probabilities, that the deceased actually funded the purchase. Proof, in this case, required more than showing that deposits were made in Kimende during the period in question. Deposits could have come from several sources business proceeds, loans, contributions from the Appellant’s husband, or other family arrangements. The Respondents did not call any evidence from the bank to link the deposits to the deceased, nor did they produce any documentary trail showing the deceased’s withdrawal or availability of such cash so as to support their claim that the deceased actually handed over cash to the Respondent. 30. The only direct evidence of the alleged cash handover was the oral testimony of PW1. This court notes that PW1 is a close relative and therefore an interested party in these proceedings. In this regard, I find that his evidence, in the absence of any documentary support or corroborating independent testimony, had to be approached with caution, particularly given the significant amount involved and the fact that the transaction was said to be purely in cash. 31. The Respondents also relied on the claim that the deceased collected rent from the containers during his lifetime to support their allegation that he had funded the purchase. The Appellant, on the other hand, candidly admitted that the deceased collected rent, but explained that this was pursuant to a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 4

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family arrangement and in recognition of his seniority as the family patriarch. My finding is that rent collection, without more, is not conclusive proof of legal or beneficial ownership. This court takes judicial notice of the fact that the circumstances of this case are consistent with a scenario where a parent collects rent from income-generating property belonging to a child, especially where the property stands on or adjacent to family land. 32. In light of the above, I find that the Respondents’ evidence that the deceased funded the purchase of the containers was speculative and circumstantial. While it may raise suspicion, it does not meet the threshold of proof required in civil matters. As the Court of Appeal stated in Palace Investments Ltd vs. Geoffrey Kariuki Mwenda & Another [2015] eKLR, proof on a balance of probabilities “means a win, however narrow. A draw is not enough.” 33. It is my finding that at best, the Respondents’ version stands on equal footing with the Appellant’s explanation that she and her husband funded the purchase through their company. Where the probabilities are equal, the party bearing the burden must fail. I am therefore unable to uphold the trial court’s finding that the deceased financed the purchase of the containers. (b) Whether the Appellant discharged her burden to establish ownership 34. Once the Respondents asserted that the containers formed part of the deceased’s estate, and the trial court accepted that the Appellant’s title was under challenge, the Appellant had an evidential burden to explain the root of her claim to the property. In Munyu Maina vs. Hiram Gathiha Maina (supra) the Court of Appeal held that when a registered proprietor’s root of title is under challenge, it is not sufficient to merely dangle the instrument of title, the proprietor must go beyond the title and demonstrate the legality of how it was acquired. 35. My interpretation of the reasoning in the above cited case is that where serious and credible challenge is raised, a proprietor cannot rest on the document alone but should show the pathway to acquisition. In the present case, as opposed to the Respondents’ bare challenge to the Appellant’s ownership of the suit property, the Appellant went to great lengths to produce bank statements of Joserus Electricals Company Ltd showing the payments made to Container World Kenya Ltd, receipts from Container World Kenya Ltd acknowledging those specific payments, and documents from the vendor showing the containers in her name. I find that this chain of documents forms a clear, coherent and logical root of title. The Respondents did not impeach the vendor’s documentation, did not allege fraud in the issuance of the receipts, and did not join Container World Kenya Ltd to contest the authenticity of the transaction. It is also instructive to note that the Respondents did not tender any proof or documentation to show that the deceased was not in a position to transact/purchase the containers on his own and had to use the Appellant as his agent. 36. I note that the trial court placed heavy weather and undue emphasis on the Appellant’s failure to call her husband as a witness. My finding is that while the husband might have strengthened the Appellant’s case, Section 143 of the Evidence Act is clear that no particular number of witnesses is required to prove a fact. The relevant question therefore is not how many witnesses were called, but whether the evidence on record, if believed, proves the point in issue. 37. On the material placed before the court, I find that the Appellant did more than “dangle” title documents as she showed the financial and contractual pathway for the acquisition of the containers. The Respondents did not rebut this evidence by, for example, showing that the company had no capacity to pay for the containers, or that the cheques were funded exclusively by the deceased’s cash. 38. In my view, the Appellant satisfactorily discharged her evidential burden by demonstrating, through credible and uncontested documentation, that her company purchased the containers from a third- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 5

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party vendor and that the vendor recognized her as the customer/owner. In contrast, the Respondents’ claim rested principally on uncorroborated oral testimony of a cash handover and on inferences drawn from the pattern of bank deposits and rent collection. 39. It is trite that oral evidence cannot be used to vary, contradict, add to, or subtract from the contents of a written document. This principle is codified in Sections 97 and 98 of the Evidence Act which stipulate as follows: 97 (1) - Exclusion of oral evidence by documentary evidence When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act. Section 98 - Evidence of terms of contracts, grants and other dispositions of property reduced to form of document When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. 40. In National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR the Court of Appeal held:“ A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud, or undue influence are pleaded and proved.” 41. This reinforces the principle that oral evidence or subsequent statements cannot change the plain meaning of a written document. 42. In Racheal Wanjiru Ng’ang’a vs. Robinson Investment Ltd t/a Robinson Security Guards ELRC Cause 169 of 2016 [2022] KEELRC 4106 the court rejected a witness’s attempt to re-characterise the claimant’s employment status by oral evidence contrary to the written appointment letter, stating that: “ This allegation by RW1 cannot contradict or override the written evidence … see sections 97 and 98 of the Evidence Act (cap 80).” 43. Applying the principle expressed in the above cited case to this appeal and having noted that the Appellant produced receipts and bank records evidencing payment to Container World Kenya Ltd for the two containers, I find that the Respondents’ attempts to rely on oral testimony to the effect that the containers were bought with the deceased’s money was inadmissible to vary or contradict those https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 6

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documents. I therefore find that the trial court’s acceptance of the oral claim over clear documentary evidence was a legal error. I find that the documentary evidence must prevail unless the Respondents proved fraud, mistake, or illegality, which they did not. 44. I therefore find that, on the totality of the evidence, the Appellant proved on a balance of probabilities that she is the purchaser and beneficial owner of the suit containers. (c) Whether the trial court misdirected itself in its findings 45. The trial magistrate concluded that because (i) the deceased collected rent and was treated by tenants as landlord, and (ii) there were deposits in the Appellant’s company account at the Kimende branch corresponding to the alleged cash handover, the deceased must have financed the purchase and the containers therefore formed part of his estate. 46. In arriving at that conclusion, the learned magistrate effectively reversed the burden of proof by placing on the Appellant the obligation to disprove the alleged cash financing. This is contrary to Sections 107–109 of the Evidence Act, which keep the legal burden firmly on the party asserting a fact, in this case, the Respondents asserting that the deceased paid for the containers. 47. The trial court also treated rent collection as almost determinative of ownership. I find that this was a misdirection as rent collection is an indicator but not proof of legal or beneficial title. Rent collection may arise from agency, licence, family arrangement, or even wrongful intermeddling. Without saying more, I find that rent collection cannot override documentary evidence of purchase and contractual relations between the Appellant (or her company) and the vendor. 48. The trial court also appeared to treat the absence of the Appellant’s husband as a witness as fatal to her case. I have already noted that, elsewhere in this judgment, that this approach is inconsistent with Section 143 of the Evidence Act and with long-standing authority that it is the quality, not the quantity, of evidence that matters. 49. It is trite that the standard of proof in civil cases is on a balance of probabilities. As was stated in Miller vs. Minister of Pensions (1947) 2 All ER 372, the evidence must carry a reasonable degree of probability and if the tribunal can say “we think it more probable than not,” the burden is discharged; if the probabilities are equal, it is not. 50. The trial court’s own analysis, by heavily relying on conjecture around the Kimende deposits and on rent collection, shows that the factual matrix was at best evenly balanced. In such circumstances, the party bearing the burden here, the Respondents, ought to have failed. Instead, the court found for them. I find that this finding constitutes an error in the application of the standard of proof. 51. As a first appellate court, once I find that the trial court shifted the burden improperly and misapplied the standard of proof, I am entitled to interfere with its findings. Having re-evaluated the evidence, I am satisfied that the learned magistrate’s conclusion that the containers formed part of the estate of the deceased was not supported by the evidence and was based on a misdirection in law and fact. (d) Reliefs and orders as to costs 52. In her counterclaim before the trial court, the Appellant sought: a declaration of ownership of the containers; a permanent injunction restraining the Respondents from dealing with the containers; an account of rent collected from June 2020 to date; and costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 7

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53. Having found that the Appellant proved that she purchased and owns the containers, it follows that the Respondents had no legal basis to treat them as part of the deceased’s estate or to collect rent therefrom after his death. 54. On the claim for rent, there are two distinct periods, namely; a. Rent collected during the deceased’s lifetime, which the Appellant herself described as being by “mutual family arrangement”. In the absence of a clear plea and proof that she objected to such collection, or that the deceased held it purely as her agent, I am not persuaded that it would be just to order an account against his estate for that period. b. Rent collected by the Respondents from June 2020 (post-death), when they took over and began collecting rent on the footing that the containers belonged to the estate. Once it is found that the containers are in fact the Appellant’s property, any such rent amounts to income from her property. Equity demands that an account be taken. 55. The appropriate course is to grant an order for an account of all rent collected by the Respondents from the date of the deceased’s death (22nd May 2020) or such other specific date pleaded (June 2020) to the date of this judgment, with liberty to the parties to apply to the trial court (other than Hon. B.M. Cheloti) for assessment of the sums due, including any necessary inquiries on expenses legitimately incurred in relation to the containers. Such assessment will also take into account the fact that the containers are placed on land belonging to the deceased and calculate the cost/rent due to the deceased’s estate from the Appellant for the space that they occupy. 56. As to costs, the general rule is that costs follow the event. The Appellant has succeeded both in this appeal and, by extension, on her counterclaim. I see no reason to depart from the rule on costs. Disposition 57. In the end, I find that the appeal is merited and ought to be allowed. Accordingly, I make the following orders: a. The appeal is allowed. b. The judgment and decree of Hon. B. M. Cheloti delivered on 24th June 2024 in the subordinate court are hereby set aside. c. In substitution therefor, judgment is entered in favour of the Appellant on her counterclaim as follows: a. The Appellant, Esther Mugure Kiriga, is the lawful and beneficial owner of the containers TRLU 6644836 and TRLU 6613460 situated at Eastleigh, Nairobi (the suit properties). b. The Respondents, whether by themselves, their agents, servants or any persons claiming through them, are hereby restrained from entering upon, interfering with, collecting rent from, alienating, disposing of, or in any manner dealing with the suit containers contrary to the Appellant’s proprietary rights. c. The Respondents shall within a period to be fixed by the trial court render a full account of all rent received from the suit containers from June 2020 to the date of this judgment, and upon taking such account, shall pay to the Appellant all sums found due, less any expenses that the trial court may find were properly incurred in relation to the containers including rent for the space that they occupy. The question of quantum https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 8

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shall be determined by the trial court on the basis of evidence to be adduced by the parties. d. 58. The Appellant shall have the costs of this appeal and of the proceedings in the subordinate court, to be taxed if not agreed. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF NOVEMBER, 2025. HON. W. A. OKWANY JUDGE 27/11/2025 For Appellant ……………………. For the Respondent ……………… Court Assistant Ubah https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19415/eng@2025-11-27 9

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