[2021] KEHC 5838 (KLR)
The court found that the appellant failed to prove his claim to a portion of land parcel Kasipul/Kakelo Dudi/109 as a gift from the deceased. The appellant did not call the only surviving witness who could corroborate his claim, and the evidence on record was insufficient to establish the existence of a valid gift....
Source-derived case information.
- Citation
- [2021] KEHC 5838 (KLR)
- Parties
- Appellant: George Otieno Dola; Respondent: Meresa Adoyo Ayugi
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 88 of 2019
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Gifts of Land, Succession and Estate Distribution, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Otieno Dola
Appellant
Meresa Adoyo Ayugi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant established his claim to a portion of land parcel Kasipul/Kakelo Dudi/109 as a gift from the deceased.
- 2 Whether the trial magistrate erred in law and fact in finding against the appellant's claim of a gift.
- 3 Whether the appellant proved the existence of a valid inter vivos gift of land.
Ratio Decidendi
The court found that the appellant failed to prove his claim to a portion of land parcel Kasipul/Kakelo Dudi/109 as a gift from the deceased. The appellant did not call the only surviving witness who could corroborate his claim, and the evidence on record was insufficient to establish the existence of a valid gift. The trial magistrate correctly applied the legal requirements for proving a gift, and there was no error in law or fact in the trial court's decision. Consequently, the appeal lacked merit and was dismissed with costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CIVIL APPEAL NO. 88 OF 2019
BETWEEN
GEORGE OTIENO DOLA...............................................................APPELLANT
AND
MERESA ADOYO AYUGI.............................................................RESPONDENT
(Being an Appeal from the judgment and decree in Oyugis Senior Principal Magistrate’s SPMCC No. 90 of 2017 by Hon. J.P. Nandi – Principal Magistrate).
JUDGMENT
1. George Otieno Dola, the appellant herein, had raised an objection in respect of the distribution of the estate Simeon Randa and in particular land parcel number Kasipul/Kakelo Dudi /109 from which he was claiming a portion. His contention was he had been given the portion he was claiming by his grandfather as a gift. The trial court ruled against his claim.
2. The appellant was aggrieved by the said judgment and filed this appeal through the firm of Amos O. Oyuko & Company Advocates. Four grounds of appeal were raised as follows:
a) That the learned trial magistrate erred in law and in fact in finding that the appellant had not established his claim in respect of land parcel number Kasipul/Kakelo Dudi /109.
b) That the learned trial magistrate erred in law and in fact in holding that the appellant failed to establish gift in contemplation of death when the gift in respect of the said land parcel land parcel number Kasipul/Kakelo Dudi/109 was not given in contemplation of death.
c) That the learned trial magistrate erred in law and in fact in disregarding the appellant’s submissions and evidence.
d) That the learned trial magistrate erred in law and in fact in proceeding on the wrong principles and thereby arriving at a wrong decision.
3. The appeal was opposed by the respondent through the firm of S.M. Onyango & Associate Advocates. The respondent contended that:
a) The appellant had no capacity to be appointed an administrator.
b) The respondent did not prove the claim of gift.
4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.
5. The learned trial magistrate was alive to the legal requirements of proving a gift in contemplation of death. He therefore concluded that the deceased did not make a gift to the appellant in contemplation of death. The appellant agrees with this finding.
6. Was there a gift made to the appellant by the deceased? The appellant stated that the deceased made the gift to him in the presence of Miriam Aroko Randa, Samson Oyieko Randa and Abisai Obonyo Osuo. He indicated that the first two are deceased. He did not call Abisai Obonyo Osuo as a witness. He therefore did not prove his contention that he was given a portion of land parcel number Kasipul/Kakelo Dudi /109.
7. From the foregoing analysis of the evidence on record, I find that the appeal lacks merit. The same is dismissed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 29TH DAY OF JUNE, 2021
KIARIE WAWERU KIARIE
JUDGE