[2023] KEELC 22421 (KLR)

Gikandu v Kang’ata (Environment and Land Appeal E024 of 2022) [2023] KEELC 22421 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22421 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment and Land Appeal E024 of 2022

LN Gacheru, J

December 14, 2023

Between

Barita Gikandu

Appellant

and

Jennifer Munjiru Kang’Ata

Respondent

(Being an Appeal against the Judgement delivered on 19th November 2022, in MCL&E No. 19 of 2014: In Kangema SPM’s Court by Hon. P M Kiama(SPM))

Judgment

1. The Appellant herein Barita Gikandu had filed an amended Plaint against the Defendant herein on 18th November 2020, and had sought for the following orders;a.Return Land Parcel No. Loc.10/Wanjengi/873. b.Costs of the suit.

2. The Respondent herein Jennifer Munjiru Kang’ata as the Defendant had filed a Defence on 20th April 2022, and denied all the allegations made in the Plaintiff’s claim. She urged the Court to strike out the suit with costs to the Defendant for lack of a cause of action against the said Defendant.

3. The matter proceeded by way of viva voce evidence on 7th September 2022, and it proceeded exparte as the Defendant(Respondent) was absent.

4. The Appellant(Plaintiff) gave evidence for himself and called one witness.

5. After consideration of the pleadings, evidence adduced and the written submissions, the trial Court entered Judgement on 9th November 2022, and dismissed the Plaintiff’s (Appellants herein) suit with costs to the Defendant(Respondent).

6. Being aggrieved by the said Judgement, the Appellant herein who was the Plaintiff in the lower Court filed an appeal vide the Memorandum of Appeal and prayed for the appeal to be allowed and that this Court do order that the Respondent to restitute land parcel no. Loc.10/Wanjengi/873, to the Appellant. Further that costs of this Appeal and on the lower Court be borne by the Respondent.The grounds of appeal are; - 1. The Learned Senior Principal Magistrate erred in law and fact in writing Judgement which ipso facto was flawed and goes against the established tenets of legal jurisprudence.

2. The Learned Senior Principal Magistrate erred in law and fact in by failing to interrogate the evidence adduced by the Appellant which testimony was not controverted by the Respondent.

3. The Learned Senior Principal Magistrate erred in Law by making finding that was erroneous in law that the Appellant did not prove his suit on a preporandance of probabilities while the converse is true.

4. The Learned Senior Principal Magistrate erred in Law and fact in by failing to order the Respondent to restitute land parcel Number Loc.10/Wanjengi/873 to the Appellant.

8. The facts finding the filing of this appeal are;

9. The Plaintiff(Appellant) alleged that he was to be given land parcel No. Loc. 10/Wanjengi/873, after surrendering land parcel No. Loc.10/Wanjengi/1573 and 1574, respectively to the Defendant (Respondents). That an Agreement was made on 27th August 2013 at the Chief’s office. That the Defendant(Respondent) failed to honour his part of the agreement after the Plaintiff(Applicant) surrendered all the documents to him.

10. Therefore, the Plaintiff(Appellant) claim was for the Defendant(Respondent) to surrender Land Parcel No. Loc.10/Wanjengi/873, which she actually acquired illegally.

11. The Defendant(Respondent) had entered appearance and filed Defence on 20th April 2022. The Defendant(Respondent) had averred that she is not the proper Defendant as she was neither the registered owner nor the beneficial owner of the suit property. She further averred that the Plaintiff(Appellant) was in a possession and occupation of the land parcel No.Loc.10/Wanjengi/873. The Defendant also admitted that she was a witness in the said agreement made at the Chief’s office, but denied that the said agreement contained any express or implicit clauses against her. Further the Defendant invoked the principle of “Nemo Dat quod Non Habel’ and reiterated that she was not the proper Defendant in the said suit.

12. That trial Court in its Judgement of 9th November 2022, found that;it is evident that the suit property Loc.10/Wanjengi/873, is not registered in the name of the Defendant Jennifer Munjiru Kangata as the suit land is registered in the name of Josephine Waiyego Kangata and 3 others who were not parties to the suit.

13. That the Defendant(Respondent) does not feature anywhere as having any proprietary interest in the said suit property Loc.10/Wanjengi/873.

14. Further that the parties were first to conclude the Succession cause for the late Gikandu Kamau before the suit land would be transferred to the Plaintiff(Applicant).

15. There was no evidence to confirm that indeed Succession cause for the estate of Gikandu was indeed filed an if so whether the suit land Loc.10/Wanjengi/873, was part of the said estate and whether the Defendant (Respondent) Jennifer Munjiru Kangata was bequeathed that parcel of land to be in a position to transfer the same to the Plaintiff.”

16. For the above reasons, the trial Court found that the Plaintiff’s suit was not proved on the required standard of balance of probabilities and thus the suit was dismissed with costs to the Defendant(Respondent).

17. This Court directed that the instant Appeal be canvassed by way of written submissions.

18. The Appellant filed his submissions on 10th July 2023, through the Law firm of T. M Njoroge & Co. Advocates and submitted that the Judgement of the trial Court was flawed Ipso facto in law and in fact. That the orders sought by the Appellant should have been granted as they met the threshold required by the law.

19. It was further submitted that the Lower Court totally ignored to the detriment of the Appellant, the evidence tendered by Appellant and his witness. Further that the evidence of Appellant was not controverted by the Respondent as he did not appear during the hearing of the case. It was further confirmed that the order of dismissal of the Plaintiff’s case at the lower court should be reversed. That the Appellant had proved his case against the Respondent on the required standard and the prayers sought should be granted. It was his further submissions that the evidence tendered before the trial Court by the Appellant was unshakeable and the Court was urged to find so and allow the appeal with costs.

20. The Respondent did not file any written submissions as she did not appear in Court at all. There was affidavit of service filed to show that she had been served through her Advocate, but she failed to appear in Court.

21. The Court has considered the Record of Appeal and the Submissions by the Appellant and finds that this is a first appeal and as provided by Section 65(b) of the Civil Procedure Act, the said appeal can be on both question of law or fact. The trial court exercised its discretion based on facts and evidence placed before it, and this Court cannot just interfere with the said discretion just because it has been moved on Appeal. Further, before this Court cannot interfere with the said discretion, this Court must be satisfied that the trial Court misdirected itself in some matter and as a result arrived at a wrong decision or that the trial Court misapprehended the law and failed to take into account some relevant matter. In the case of Mbogo & Another vs Shah (1968) EA at page 93, the Court held;I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court, unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

22. As provided by Section 78 of the Civil Procedure Act, this Court in its Appellate role has a duty to re-consider, re-evaluate and re-analyse the evidence as contained in the Record of Appeal and also the grounds set out in the Memo of Appeal. This position was held in the case of Gitobu Imanyara & 2 Others vs AG (2016) eKLR, where the Court of Appeal held;“An Appeal to this Court from the trial by the High Court is by way of retrial, and the principles upon which this Court acts in such an appeal are well settled.

23. Briefly put, they are that;- this Court must reconsider the evidence, evaluate 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 allowances in this respect”.

24. This position was also held in the case of Abok James Odera t/a A. J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR, where the Court held;This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

25. Therefore, the Appellant herein should sufficiently guide this Court within the given parameters in order for this Court to interfere with the discretion of the trial Court.

26. Having now taking into account the above analysis and having perused the Memo of Appeal, the Record of Appeal and the Appellant’s written submissions, the Court finds the issue for determination is whether the instant appeal is merited.

27. As the Court pointed earlier, the matter proceeded for hearing exparte as the Defendant(Respondent) herein failed to appear in Court on the date of the hearing. The Appellant’s allegations remain uncontroverted. However, it is trite that uncontroverted evidence is not sufficient to prove a case. The said exparte evidence is subject to scrutiny and the same has to meet the requisite standard of proof on the balance of balance, while bearing in mind the burden of proof is always on the person who alleges. See the case of Charter House Bank Ltd (Under Statutory Management vs Frank N. Kamau (2016) eKLR, where the Court held;“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the defendant.…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified’’

28. Bearing in mind that the Appellant herein is the Plaintiff at the Lower Court, he had the onerous task of calling evidence to prove his case on the required standard of balance of probabilities. See the case of Eastern Produce (K) Ltd – Chemomi Tea Estate v Bonface Shoya [2018] eKLR, where the Court held;In civil cases, a plaintiff is required to prove his claim against the defendant on the balance of probabilities. This position was clearly stated in the case of Kirugi & Ano. -vs- Kabiya & 3 Others [1987] KLR 347 where the Court of Appeal stated that the burden was always on the plaintiff to prove his case on the balance of probabilities, and that such burden was not lessened even if the case was heard by way of formal proof.

29. Moreover, Section 109 of the Evidence Act states that the burden of proof is to any particular fact lies on the person who wishes the Court to believe in its existence…………”

30. It was the Appellant allegations in his amended Plaint that he gave the Defendant(Respondent) land parcels No. Loc. 10/Wanjengi/1573 and 1574, in exchange for land parcel No. Loc.10/Wanjengi/873, which the Appellant was claiming. He relied on an alleged agreement dated 27th August 2013, which was signed at the Chief’s office.

31. In the said agreement which the Appellant solely relied on, it was stated that“following the transfer of land parcels No. Loc.10/Wanjengi/1573 and 1574 to Jennifer Munjiru Kangata and Samuel Ndumbi, the Succession Cause which was to follow was to consider compensating the exact size of land to Barita Gikandu and the rest was to be shared by the family members.”

32. The said agreement does not indicate the Succession cause is over whose estate and for what parcel of land.

33. The Respondent herein is not indicated as the owner of the suit land, but the said agreement was signed by many persons and the Respondent(Defendant) was among the many who signed the said agreement.

34. Even supposing the said agreement was over land parcel No. Loc.10/Wanjengi/873, then the Appellant was not to get all of it but the exact size that Barita had ceded.

35. From the Appellant’s written statement dated 13th May 2014, which he adopted as his evidence in Chief, the suit property Loc.10/Wanjengi/873, was registered in the name of Joseph Kangata and not Jennifer Munjiru Kangata. The Defendant(Respondent) could not give what does not belong to her and thus the Nemo Dat rule applies herein.

36. Nemo Dat rule is a legal principle that a person who does not have adequate ownership of goods or property cannot transfer the ownership of those goods or that property to someone else. See the case of Katana Kalume & Another vs Municipal Council of Mombasa & Another (2019)eKLR, where the Court held;‘The rule of Nemo Dat qoud Non Habel (no one can give that which one does not have) equally applies to the purported allocation of the suit property herein to the 2nd Defendant. A person cannot give a better title than what he has except in rare cases such as a sale under an order of the Court, transfer of negotiable instrument to a holder in due course. None of these exceptions apply in this case……No one can ever pass a better title that he has”.

37. The Appellant in his evidence produced an official search certificate dated 23rd February, 2012, which showed that the land was registered among five persons and the Respondent (Defendant at the trial Court) was not one of them. She could certainly not be expected to pass what she did not own.

38. The Appellant in his claim had sought for return of land parcel No. Loc.10/Wanjengi/873. This return was to who?

39. Even if the Appellant was claiming a return of the said land to himself, it is clear that he was not entitled to the whole suit property but to an exact portion to the one ceded by himself to the two named persons.

40. This Court has noted that the trial Court did analyse the evidence adduced and available before it and correctly arrived at a finding that“……………with regard to the agreement dated 27th August, 2013, it had been stated that the Succession Cause which is to follow over the above estate of Gikandu Kamau, shall consider compensation the exact size of land that Barita Gikandu ceded to the two named persons.”

41. The trial Court further held that it was clear that the parties were first to conclude a Succession cause before the land could be transferred. There was no evidence that such Succession Cause had been concluded.

42. Considering the grounds of Appeal, this Court finds and holds that the trial Court interrogated the evidence before the said Court and correctly arrived at a finding that the said case had not been proved on the required standard of balance of probabilities.

43. In conclusion, the Court finds and holds that the appeal herein is not merit and this Court finds no reasons to interfere with the trial Court’s Judgement of 9th November 2022.

44. The said Judgement of the trial Court is upheld and the instant appeal is dismissed entirely with no orders as to costs as the Respondent did not participate in the proceedings.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 14TH DAY OF DECEMBER,2023L. GACHERUJUDGEDelivered online in the presence ofMr. T M Njoroge for the AppellantAbsent for the RespondentJoel Njonjo – Court AssistantL. GACHERUJUDGE14/12/2023