[2002] KECA 201 (KLR)
The Court of Appeal held that the appellant failed to discharge the burden of proof required to establish that the respondent was not a member of the group ranch. The respondent produced credible documentary evidence, including the Register of Members and supporting letters, confirming his membership. The...
Source-derived case information.
- Citation
- [2002] KECA 201 (KLR)
- Parties
- Appellant: Lontebes Group Ranch; Respondent: Kipkemoi arap Mendera
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 71 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- RO Kwach
- Legal Topics
- Group Ranch Membership, Trespass to Land, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lontebes Group Ranch
Appellant
Kipkemoi arap Mendera
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent was a member of the appellant group ranch and thus entitled to occupy the suit land.
- 2 Whether the respondent was a trespasser on the suit land as alleged by the appellant.
- 3 Whether the appellant discharged the burden of proof to show the respondent was not a member.
Ratio Decidendi
The Court of Appeal held that the appellant failed to discharge the burden of proof required to establish that the respondent was not a member of the group ranch. The respondent produced credible documentary evidence, including the Register of Members and supporting letters, confirming his membership. The appellant's mere oral assertions and failure to produce an alternative register or credible evidence undermined their case. Consequently, the respondent was not a trespasser but a legitimate member entitled to occupy the suit land. The trial judge's decision was upheld, and the appeal was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAKURU
(CORAM: KWACH, OMOLO & BOSIRE, JJ.A.)
CIVIL APPEAL NO. 71 OF 2000
BETWEEN
LONTEBES GROUP RANCH ................... APPELLANT
AND
KIPKEMOI ARAP MENDERA ................ RESPONDENT
(Appeal from a judgment of the High Court of Kenya at
Kericho (Nambuye, J.) dated 27th September, 1994
in
H.C.C.C. NO. 17 OF 1992)
*******************
JUDGMENT OF THE COURT
Kipkemoi arap Mendera,the respondent in this appeal, did not appear either in person or by an Advocate although he was served with the hearing notice. So we only heard submissions from Mr. Kahiga, Advocate for Lontebes Group Ranch, the appellant in this appeal.
In 1992 the appellant filed a suit in the superior court against the respondent seeking, among other reliefs, an order for the ejectment of the respondent from a parcel of land No. Narok/CIS-Mara/Lemek/129(the suit land) and damages for trespass. The appellant is the registered proprietor of the suit land. It was alleged by the appellant that the respondent had entered into the suit land without the appellant's consent and against its will and had committed therein acts which caused damage to the appellant.
In his defence filed on 27th October, 1992, the respondent denied being a trespasser and averred that the suit land was a group land held by the appellant under section 7 of theLand (Group Representatives) Act (Cap 287) (the Act) on behalf of the members of the group of which he was also a member.
Although the appellant called evidence in an attempt to show that the respondent was not a member of the group, they did not place before the Judge credible evidence to disprove the respondent's contention. All they did was to disown the respondent by oral evidence which the learned Judge rejected.
On his part the respondent placed before the learned Judge a copy of theRegister of Members under section 17(1) of the Act. In that register the respondent is shown as member No. 8, the other members being Leleito Cheusi, Purpuria Ezekiel, Chelule Kenduywa, Leleito Towet, Leleito Chepkulul, Leleito Kosiom and Kaplelach Kiptangusi. He also produced a copy of theLand Certificateissued to Lontebes Group Ranch dated 2nd September, 1986. He also produced copies of letters from the Provincial Administration confirming that he was a genuine member of the Group Ranch. The appellant produced no credible evidence to the contrary beyond a mere assertion by word of mouth that the respondent is not a member.
Mr. Kahiga persistently contended before us that the extract of the Register produced by the respondent was a forgery but he was unable to show us any evidence placed before the trial Judge by the appellant to show that the document produced by the respondent was not a genuine extract from the register. Since it was the appellant's case that the respondent was not a member of the Group but a trespasser, the appellant had to prove, on a balance of probabilities, that the document produced by the respondent as the basis of his claim to membership was a forgery. All they needed to do to discharge that burden was simply to place before the Judge a copy of what they believed to be the authentic Register of members. They did not discharge that burden and having not done so, the foundation of their case collapsed. In these circumstances, the Judge was quite right to hold that the respondent was a member of the Group and not a trespasser as alleged by the appellant.
In view of what we have said we are clearly of the opinion that there is no merit in this appeal. It is accordingly dismissed with no order as to costs.
Dated and delivered at Nakuru this 27th day of September, 2002.
R. O. KWACH
...............
JUDGE OF APPEAL
R. S. C. OMOLO
...............
JUDGE OF APPEAL
S. E. O. BOSIRE
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR