Richard Wanjohi Karuri v Samuel Karani Muriithi

1. The learned Magistrate erred in law and fact in finding in favour of the Respondent against the weight of the evidence adduced by the Appellant. 2. The learned Magistrate erred in law and fact in considering extraneous matters in arriving at a decision in favour of the Respondent. 3. The learned Magistrate erred in law and in fact by relying on the Forest Officers Report which was: a) Full of contradictions, unreliable and had been proved as worthless. b) The Forest Officer’s Report was admitted against the Law as the maker did not give evidence. c) The conviction having been set aside, the Forest Officer had to give evidence in support of his report. 4. The learned Magistrate erred in law and fact in failing to find or appreciate the fact that the appellant had a witness whose testimony was not challenged at the criminal proceedings where he saw the Respondent receiving money from the Appellant in payment for the trees. 5. The Learned Magistrate erred in law and fact in failing to find that the Respondent's case was full of contradictions and falsehood which the honourable court ought to have considered while arriving at its decision. 6. The learned Magistrate erred in law and fact in failing to find that the Appellant's evidence was uncontroverted by the Respondent and the Respondent had paid for the trees cut in full. 7. The Learned Magistrate erred by entering judgement for Kshs. 564,170/50 while the plaintiff claimed the value of the trees was Kshs. 380,000/=. 8. The learned Magistrate’s decision was based on the wrong principles. 9. The learned Magistrate erred in law and fact in failing to find in favour of the Respondent. 10. The Learned Magistrate erred in law and fact by failing to follow the finding of the High Court in Kerugoya Criminal Appeal Number 4 of 2019 where the court found that there was a high probability that the Appellant had paid for the tress. 11. The Magistrate erred in law and fact in basing his decision on irrelevant and extraneous circumstances. Duty of the Court 5. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123). Oral Evidence 6. PW1 Samuel Karani Muriithi, the Respondent herein testified that, “I’m Samuel Karani Murithi. I’m from Kirinyaga County. I'm a Civil servant. I’m an Auditor. I'm the plaintiff. I filed a statement dated 28.8.2017. I adopt it as my evidence in chief. My trees are eucalyptus. The land is 3 acres. I have not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4468/eng@2026-02-26 2

page 2 of 5

given permission to defendant to cut them. I have a valuation report. I wish to produce it. The report is exhibit No. 1. Claiming the sum in the plaint. I also claim costs.” 7. On cross examination, he stated that, “The case relates to trees on land. I did not file before ELC. The land does not belong to me. It belongs to my wife. She is Hellen Wambura Njoka. The mature trees were 293. We did not count the ones that are not mature. All the trees were cut (witness referred to criminal proceedings). It says 290 trees not cut. My evidence in the criminal case says 93 trees were mature. The value of the trees was Kshs. 380,000/=. I had not cut 20 trees. In the criminal proceedings I said that I had cut 20 trees. I could remember my evidence. (witness referred to page 12 of criminal proceedings). I had not told the valuer of the fact that I had cut trees. I’m not aware that conviction was set aside. I was not paid for the trees. There was not witness. I got to know the valuer when I wanted permit to cut the trees. He had not seen the trees before they were cut. There is no mention of immature trees in the Forester report.” 8. In re-examination, he stated that, “(referred to the valuers report). The valuer was assisted by the remaining trees. The valuer was allocated by the County forester. There was no agreement between myself and defendant. I was not paid any money. 93 trees were bit. 293 were cut. The land is registered in the name of my wife.” 9. PW2 Hellen Wambura Njoka testified that, “I’m a farmer. I recorded a statement dated 28.9.2017. I adopt it as my evidence in chief. PW1 is my husband. We had planted trees on the land. They were 293 in number. They were cut by defendant. I know him. We had not sold the trees to him.” 10. On cross examination, she stated that, “The land is registered in my name. There were 293 trees. I did not sell trees to the defendant. We did not ask for Ksh. 350,000/= (witness referred to the criminal proceedings) page 8. The defendant had agreed to pay us. We did not inflate the price. (witness referred to page 9). My evidence before the criminal court says that 290 had not been cut. I had not visited the land for more than 5 years before the incident. I’m not aware that PW1 had cut some trees.” 11. In re-examination, she stated that, “The proceedings are from court. I told the court that 290 trees had been cut. I did not discuss payment before the trees were cut. He offered to pay after the incident. The land is mine. We planted trees with PW1.” 12. DW1 Richard Wanjohi Karuri, the Appellant herein testified that, “I know the plaintiff. I recorded a statement. I wish to adopt it as my evidence in chef. I was charged in 468/2016. I wish to produce the proceedings as my evidence. I appealed before High Court. I wish to produce the ruling as my evidence. The trees were sold to me by the plaintiff. I was to pay Kshs. 280,000/=. They asked for Kshs. 70,000/ = more. I ask that case be dismissed.” 13. On cross examination, he stated that, “We did not have a written agreement. It was verbal. The trees were 50. The price was not per tree. I was to lease 8 trees. We knew each other. His wife was present. I paid money in the presence of Mwai Muriithi. The payment was not documented.” 14. In re-examination, he stated that, “We did not enter into a written agreement. I paid Kshs. 280,000/=.” Submissions 15. The Appellant alludes to material contradictions in the Respondent’s testimony, which the trial court disregarded, and cites Ali v Republic (Criminal Appeal 49 of 2019) [2025] KECA 1004 (KLR) (23 May 2025) (Judgment). He faults the trial court for rejecting his credible evidence on the existence of an oral contract, and cites Karuri v Republic (Criminal Appeal 4 of 2019) [2023] KEHC 17254 (KLR) (10 May 2023) (Judgment) and Kenya Power and Lighting Company Limited v https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4468/eng@2026-02-26 3

page 3 of 5

Murungi (Environment and Land Appeal E005 of 2024) [2024] KEELC 5735(KLR) (31 July 2024) (Judgment). 16. The Respondent lauds the trial court for exercising its discretion properly in arriving at the impugned decision, as he proved his claim with corroborative evidence, and cites Mbogo and Another v Shah 1968 E.A 93. Analysis and determination 17. From the grounds of appeal as framed, the singular issue for determination is whether the trial court’s judgment was against the weight of the evidence tendered. 18. The age-old principle of law is that he who alleges must prove. 19. The Respondent herein testified that, “The land does not belong to me. It belongs to my wife. She is Hellen Wambura Njoka. The mature trees were 293. It says 290 trees not cut. My evidence in the criminal case says 93 trees were mature. The value of the trees was Kshs. 380,000/=. I had not cut 20 trees. In the criminal proceedings I said that I had cut 20 trees.” In re-examination, he stated that, “There was no agreement between myself and defendant.” 20. PW2 testified that, “PW1 is my husband. We had planted trees on the land. They were 293 in number. They were cut by defendant. I know him. We had not sold the trees to him.” On cross examination, she stated that, “The defendant had agreed to pay us. I’m not aware that PW1 had cut some trees.” In re-examination, she stated that, “I did not discuss payment before the trees were cut. He offered to pay after the incident.” 21. The Appellant herein testified that, “The trees were sold to me by the plaintiff. I was to pay Kshs. 280,000/=. They asked for Kshs. 70,000/= more.” On cross examination, he stated that, “We did not have a written agreement. It was verbal. The trees were 50. The price was not per tree. I was to lease 8 trees.” In re-examination, he stated that, “I paid Kshs. 280,000/=.” 22. During the criminal proceedings, the Respondent testified that, “The total Number of mature trees 93 and semi mature 205. My valuation is Kshs. 380,000/- of the trees that were felled down.” On cross examination, he stated that, “I can’t remember whether we discussed the issue of payment. It is true I had cut 20 trees before the incident. 7 trees remained on the land.” 23. On her part, PW2 told the court that, “We called the accused, he came and promised he would bring us money but he didn’t. We trusted him and that is why we didn’t record an agreement.” On cross examination, she stated that, “Accused himself informed me on 13th of July and he told me he will give me Kshs 350,000/-. Had he paid, we wouldn’t have reported. I trusted him and that is why we didn’t enter into an agreement. 290 trees had not been cut down.” 24. It is clear from the extracts of the testimonies adduced by PW1 and PW2 in the criminal proceedings that there existed an arrangement between the parties permitting the Appellant to fell 93 trees and make payment of Ksh. 350,000. 25. This court finds that the trial court fell into error in placing undue reliance on the agricultural report, while disregarding the uncontroverted evidence of an oral agreement under which the Appellant undertook to pay Ksh. 350,000. 26. The Appellant maintained even on thorough cross examination that he had paid Ksh. 280,000, and the Respondent unlawfully demanded for a further Ksh. 70,000. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4468/eng@2026-02-26 4

page 4 of 5

27. The court finds that there in deed existed an oral agreement requiring the Appellant to pay Ksh, 350,000 for the trees he had felled. There is therefore a basis for this court’s interference. Orders 28. Accordingly, for the reasons set out above, the Court finds that the Appellant’s appeal is merited and it is allowed in the following terms: 1. The trial court’s award of Ksh.564,170.50 is set aside and substituted with an award of Ksh.70,000. 2. The Respondent shall have the Costs of the suit and interest at court rates from the date of judgment in the trial court. 3. Costs of the Appeal to the Appellant. Order accordingly. DATED AND DELIVERED THIS 26TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mshindi for Mr. Wandaka for the Appellant. Mr. Ndana for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4468/eng@2026-02-26 5

page 5 of 5