Automated Summary
Key Facts
The Appellant claimed ownership of Plot No 2xx in Webuye Site and Service, allocated by the National Housing Corporation after repaying her loan. However, the Municipal Council of Webuye repossessed the plot in 2009 and reallocated it to the 1st Respondent, who later sold it to the 2nd Respondent in 2011. The Appellant alleged trespass and damage to her property valued at Kshs.16,500 but failed to provide evidence of ownership or the claimed damages. The trial court dismissed her case, and the appeal was also dismissed as there was no evidence of judicial bias or misdirection in the ownership determination.
Issues
- The Appellant sought Kshs.16,500 in special damages for building materials destroyed by the Respondents, but the trial magistrate dismissed the claim due to insufficient evidence.
- The Appellant alleged that the trial magistrate was biased and had a pre-determined decision, but the court found no evidence to support this claim.
- The Appellant claimed the respondents interfered with her occupation of the plot during the suit, but the court found the application for injunction was too late to address the issue.
- The main issue was the ownership of Plot No. 2xx at Webuye Site and Service Scheme, with the Appellant claiming allocation by National Housing Corporation and the Respondents asserting ownership through reallocation by the Municipal Council of Webuye.
- The trial magistrate's assertion that the Appellant should have included the Municipal Council of Webuye and National Housing Corporation as parties, despite the claim being against the respondents for trespass.
Holdings
- Ground 5 was dismissed. The appellant's late injunction application (2016) could not remedy a 5-year occupation by the respondents. The court found no justification for eviction since the 2nd respondent had lawful ownership through purchase.
- Ground 3 was dismissed. The appellant did not provide sufficient documentation or evidence to prove the Kshs.16,500 special damages claim for damaged building materials. The court emphasized that such claims require strict proof, which was lacking here.
- Grounds 1, 2, and 6 of the appeal were dismissed. The trial magistrate did not err in finding the appellant failed to prove ownership of the suit plot or in determining the judgment was not predetermined or biased. The evidence showed the 2nd respondent, who purchased the plot from the 1st respondent, was the rightful owner.
- Ground 4 succeeded but was deemed insignificant. The trial magistrate erred in suggesting the appellant should have enjoined non-parties (Municipal Council and National Housing Corporation), but this did not affect the final outcome. The respondents could have pursued third-party proceedings, not the appellant.
Remedies
- Each party is directed to meet their own costs. The trial court's cost order remains unchanged.
- The appeal is dismissed as it is devoid of merit. The trial magistrate's judgment and decree are upheld.
Legal Principles
- The Appellant was required to adduce cogent evidence to prove ownership of the suit plot under Sections 107-109 of the Evidence Act, which state that the party asserting a legal right must prove the existence of the relevant facts.
- The trial magistrate was not biased, and the Appellant failed to provide evidence of bias, aligning with principles of impartiality under Natural Justice (e.g., Locabail v Bayfield Properties Ltd).
- Special damages (Kshs.16,500) must be strictly proved with specific evidence, as per Hahn v Singh and Douglas Kalafa Ombeva v David Ngama, and cannot be inferred from the act complained of.
Precedent Name
- Selle & Another v Associated Motor Boat Co. Ltd & Others
- Peters v Sunday Post Ltd
- Hahn v Singh
- Locabail (UK) Ltd v Bayfield Properties Ltd & Another
- Douglas Kalafa Ombeva v David Ngama
Cited Statute
Evidence Act
Judge Name
Boaz N. Olao
Passage Text
- The letter dated 1st February 2012 from the National Housing Corporation addressed to the Town Clerk Webuye Municipal Council is very telling and due to its relevance, I shall cite it in extenso: "Dear Sir Ref: Plot No. 2xx Site & Service Scheme. This is to request you to confirm the ownership of plot No 2xx Site and Service Scheme for records show Mary Watima Id No xxxx of P. O. Box 712 Webuye and a letter Ref MCW/ L&A/205/111 dated 14/4/2009 shows plot was repossessed and re-allocated to Mr Isaac Waswa Wabwire of P.O. Box 447 Webuye. The plot has a loan balance the last payment was paid on 23rd January 2004. Receipt No 431197 for Kshs.554/="
- Any judicial officer who has a personal interest in the subject of a trial must of necessity recuse himself from hearing the dispute. There can be no fair trial without impartiality of those whose duty it is to administer the law. It was held in Locabail (uk) Ltd v Bayfield Properties Ltd & another 2000 QB 451 that: "The basic rule is not in doubt. Nor is the rationale of the rule that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause; and that such a proceeding would without more undermine public confidence in the integrity of the administration of justice."
- The trial magistrate erred both in law and fact in arriving at the above conclusion for two reasons. Firstly, the remedies of eviction, permanent injunction and special damages which the Appellant sought could only be pleaded as against the Respondents. Neither the Municipal Council of Webuye nor the National Housing Corporation had trespassed onto the suit plot and carted away the Appellant's building materials. Therefore, the Appellant had no dispute with those entities and had no business impleading them in these proceedings.