https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11471

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO.154 OF 2023** **PHILIP MULUPI CHITELESI ………………………………………………………… APPELLANT** **VERSUS** **TIMOTHY LUCHELI MUKHONJE ……………………………………………… RESPONDENT** **(Being an appeal from the judgment of Hon. CN. NJALAE, PM, in Butali Senior Principal Magistrate’s Court Civil Suit No. 140 of 2018, delivered on 21st September 2023)** **JUDGEMENT** **Background** 1. By way of a plaint dated 18/5/2018 filed pursuant to an ex parte order dated 26/4/2018 made in Kakamega CMC Misc. Application No. 13 of 2018 granting the Respondent leave to file suit out of time, the Respondent sued the Appellant seeking payment of Kshs. 102,615/= for the destruction of his sugar cane plantation, banana, avocado, and mango trees, as well as costs and interest. 2. The Respondent's case was that on 27th January 2015 at Lufumbo Village, the Appellant, without any justifiable cause, maliciously set fire to his 1.25 acres of cultivated sugarcane. He reported the matter to the police, and the Appellant was charged in Butali SRMCC No. 750 of 2015 with setting fire to cultivated crops contrary to Section 334 of the Penal Code. The Appellant was acquitted, and the Respondent filed a civil suit, arguing that the acquittal did not exonerate the Appellant from civil liability. 3. The civil suit was filed on 25th May 2018. The cause of action arose on 27th January 2015, exceeding the three-year limitation period under Section 4(2) of the Limitation of Actions Act, Cap 22. However, prior to filing, the Respondent obtained an order extending time through Kakamega Chief Magistrates' Court, Miscellaneous Application No. 13 of 2018. 4. The Appellant in his defence denied all the averments in the plaint, contending that the land parcel No. S/Kabras/Bushu/164, on which the claim was based, had been subdivided in 2005 and no longer existed as a registered parcel. He further averred that the extension order was null and void because it was obtained from a court without jurisdiction. 5. The Appellant raised a Preliminary Objection dated 20th August 2020 on the grounds that the suit was time-barred and the extension order was void ab initio. The trial court overruled this objection and proceeded to hear the matter. 6. In a judgment delivered on 21st September 2023, the learned trial magistrate found the Appellant liable and entered judgment for the Respondent for Kshs. 102,615/= with costs and interest from the date of filing. **Grounds of Appeal** 1. Aggrieved by the said decision, the Appellant lodged the present appeal through a memorandum of appeal dated 19th October 2023 on the grounds that: 2. *The learned magistrate erred in law and in fact by failing to properly analyse the evidence and find that the Respondent had not proved any malice on the part of the Appellant.* 3. *The learned magistrate erred in fact by finding that the Appellant was the source of the fire that spread to the Respondent’s land.* 4. *The learned magistrate erred in law by holding the Appellant liable for the fire that spread to the respondent’s land.* 5. *The learned magistrate erred in fact and in law by holding that the parcel of land damaged by fire belonged to the Respondent without evidence to prove it.* 6. *The learned magistrate erred in law by holding that the Respondent proved his case on a balance of probabilities.* 7. *The learned magistrate erred in law and in fact in holding that the Respondent had capacity in law to institute the suit.* 8. *The learned magistrate erred in law and in fact by holding that the sugarcane destroyed belonged to the Respondent, which was not supported by any evidence on record.* **Appellant’s Submissions** 1. The Appellant submits that the Respondent lacked capacity to sue as he described himself as the beneficial owner of L.R. No. KABRAS/BUSHU/164 registered in the names of his late father and which parcel as discerned from the trial court’s proceeding is no longer in existence following subdivision. 2. Secondly, the Appellant submits that the Respondent lacks *locus standi* as by his admission, the parcel of land is registered in his deceased father’s name and one cannot sue for damages for the benefit of an estate of a deceased person without Grant of Letters of Administration. He relies on **Kipngetich Kalya Kones (Suing as the Administrator of the Estate of Kipkalya Kiprono Kones [2021] eKLR**. 3. On liability, the Appellant relies on his acquittal in the criminal case and on the absence of any eyewitnesses who personally saw him set the fire. He further submits that his visit and apology to his neighbour were for not having burnt the Respondent's house, and were not an admission of burning the crops. 4. On quantum, the Appellant submits that the agricultural report P3 references a parcel that no longer existed, having been subdivided in 2005, and that a second assessment report by Khamala was never produced. **Respondent’s Submissions** 1. The Respondent submits that the extension order was lawfully obtained and that Article 159(2)(d) of the Constitution mandates courts to administer justice without undue regard to procedural technicalities. He further urges that the Butali court was undergoing a transition at the relevant time and that he approached the court in Kakamega for convenience. 2. On liability, the Respondent, relying on the evidence of PW2 and PW3, submits that the fire originated from the Appellant's land while trash was being burned there, and that the Appellant subsequently came to his home and apologized that the fire had overpowered him while burning sugarcane refuse, and even offered to negotiate compensation. He further submits that the criminal acquittal at the higher standard of proof beyond reasonable doubt does not preclude a finding of civil liability on a balance of probabilities. 3. On quantum, the Respondent submits that PW4 personally visited the farm, conducted an assessment of the destroyed crops, and produced exhibit P3, which valued the loss at Kshs. 102,615/=. He submits that the parcel reference in the report was merely to locate the land and that the assessment was of his personal crops. **Analysis and Determination** 1. Under Section 38 of the Small Claims Court Act 2016; ***“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.*** ***(2)An appeal from any decision or order referred to in subsection (1) shall be final.***” 1. It follows that where an appeal is wholly grounded on facts whereby the Appellant expresses dissatisfaction with the evidence and factual findings of the trial court, without any claim that there was legal error, or failure to consider relevant legal principles, the appellate court cannot interfere with the trial court’s finding. 2. The issues that arise for determination herein are:- 3. *Whether the appeal raises a matter of law capable of invoking this court’s appellate jurisdiction.* 4. *Whether the Respondent had capacity in law to institute the suit.* 5. It is well settled that the High Court’s appellate jurisdiction with regard to appeals from the Small Claims Court is narrow and limited strictly to matters of law. This jurisdiction has been re-affirmed to be narrow by design as the purpose of the Small Claims Court Act, 2016 was to facilitate expeditious, affordable and final disposal of minor commercial and civil disputes by removing the legal and procedural bottlenecks attendant to regular law suits. For this reason, there is no further right of appeal upon the High Court making its decision on an appeal from the Small Claims Court. 6. In **Kenya Breweries Ltd v. Godfrey Odoyo [2010] KECA 498 (KLR)**, the Court of Appeal clarified the difference between matters of law and matters of fact and stated as follows:- ***“…First, this is a second appeal. In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analyse it, evaluate it and come to its own independent conclusion. In other words a first appeal is by way of a retrial and facts must be revisited and analysed a fresh, - see Selle and Another vs Associated Motor Boat Company Ltd and others [1968] EA 123. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse…”*** 1. In**Wanjiru v. Kiilu [2024] KEHC 8881 (KLR)**, the Court held that:- ***“It therefore follows that appeals originating from the Small Claims Court to this court can only on the points of law. Consequently, this court cannot, in appeals emanating from that Court, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court when dealing with such appeals, is therefore equivalent to that of the Court of Appeal in its capacity as a second appellate court.”*** 1. Flowing from the above, this court can only interfere with the decision of the trial court if it is demonstrated that the trial court acted on wrong principles in arriving at its findings, or that looking at the entire decision, it is perverse. See **Maina v. Mugiria [1983] KLR 78**. 2. The Court has considered grounds 1, 2, 3, 4, 5, and 7 of the appeal and finds that all of them raise matters of fact as the Appellant invites the court to revisit the adjudicator’s findings of fact. The said grounds are therefore incompetent an must fail. 3. The Appellant’s primary legal challenge therefore rests on his claim that the Respondent lacked *locus standi* to file suit as the land upon which the burnt crop was no longer in existence and/or did not belong to him but to the father, who was deceased. *Locus standi* is a point of law as it is a jurisdictional issue. 4. To determine the issue, a clear distinction must be drawn between an action for wrong to the land itself, and an action for damage to crops that are growing on the land. The Respondent’s suit was not in respect to the land. It was a claim for special damages representing the financial value of the crops that he personally planted, nurtured and hoped to harvest for his own profit, albeit on land that belonged to his deceased father. 5. In the case of **Josephat Gacheru Rugiri v. Loise Gachiku Kinuthia & 3 others [2024] KECA 1601 (KLR)**, the Court of Appeal held that locus standi is intrinsically tied to the specific injury suffered and the remedy sought and pronounced itself as follows:- ***“20.Locus standi is cardinal in civil proceedings because without it, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction. In Amlers Precedents of Pleadings, Lexis Nexis LTC Harms et al 2018 on page 248 the following is said:*** ***“The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the sufficiency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and there are no fixed rules.”*** ***21.Locus standi concerns the sufficiency and directness of a litigant’s interest in proceedings which warrants his or her title to prosecute the claim asserted, and should be one of the first things to establish in a litigation...”*** 1. The Respondent adduced sufficient evidence that he owned the crop that was destroyed as he had planted it on his deceased father’s land over which he had a beneficial interest. This was sufficient to grant him locus standi and the fact that the land was not registered in his name or was no longer in existence was immaterial. 2. Guided by the foregoing, the Court finds that the appeal must fail. It is dismissed with costs assessed at Ksh. 50,000/= payable to the Respondent. Dated, signed, and delivered at Kakamega, this 23th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** Ms. Ihachi for the Appellant Ms. Bosita holding brief for Mr. Getanda for the Respondent Court Assistant: Polycap