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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 151 of 2005· [2010] KECA 52 (KLR)

Mate Ntuara & 5 others v Rithaa Ntuara & 2 others

Court of Appeal of Kenya
19 November 2010
2,098 words in judgment
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The bottom line

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The Court of Appeal dismissed a family land trust claim, confirming that a second appeal only examines legal errors, not facts, and trust claims must be proven.

What this practically means

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Executive summary

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The six appellants, sons of the late Ntuara Amundi, claimed two parcels of land, Karingani/Mugirirwa/273 and 567 (or 569), alleging that their late father had registered them in the names of the respondents to hold in trust for all his sons. The trial Magistrate's Court dismissed the claim, finding both parcels had been bought by the respondents and never belonged to the deceased. Sitati, J of the High Court dismissed the first appeal on 19th April 2005, holding that the appellants had failed to establish a trust and that the parcels did not form part of the estate. The appellants pursued a second appeal to the Court of Appeal at Nyeri on five grounds, including the accuracy of the Judge's record, reliance on green cards, credibility findings, an alleged prior land disputes tribunal adjudication, and burden of proof. The Court, composed of Omolo, O'Kubasu and Aganyanya, JJ.A, sitting as a single judgment of the Court, reiterated that a second appeal is confined to issues of law. It found no green cards in the record, noted the concurrent findings of the two lower courts that the parcels never belonged to the deceased, held that the burden of proving the trust lay on the appellants on a balance of probabilities, and observed that no record of any tribunal adjudication had been produced and that the plaint sought declarations rather than enforcement of a prior decision. All five grounds failed and the appeal was dismissed with costs on 19th November 2010.

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to issues of law; concurrent findings of fact by the trial magistrate and the High Court will not be disturbed without a demonstrable legal basis.

Reasoning

The Court reminded the lay appellants, who expected a fresh hearing, that only the record and questions of law would be considered. The two courts below had made clear, unambiguous and concurrent findings that the disputed parcels did not form part of the estate of Ntuara Amundi. As the appellants pointed to no error of law in those findings, the Court had no basis to interfere.

p. 3
02

Burden of proof of a trust claim

Holding

A party claiming that land registered in another's name is held in trust bears the burden of proving that claim on a balance of probabilities.

Reasoning

The appellants claimed the two parcels, registered in the names of the 2nd and 3rd respondents, were held in trust for all the sons of the deceased. Both the trial Magistrate and the High Court held that the appellants failed to establish the trust. The Court of Appeal held the burden lay naturally on the appellants as the party making the claim to land registered in others' names.

p. 3
03

Prior tribunal adjudication

Holding

Where a party instituted a fresh suit seeking declarations rather than enforcement of a prior tribunal decision, the court decides the suit on its own merits and a prior tribunal decision not produced in evidence cannot found an appellate ground.

Reasoning

The appellants argued the dispute had been adjudicated by a land disputes tribunal. The Court noted no record of such adjudication was produced in either court below, and that the appellants themselves, through counsel, filed a plaint seeking declarations of trust and re-registration, not enforcement of any prior decision.

p. 3

Legal principles established

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  • On a second appeal to the Court of Appeal, the court is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below absent a legal basis.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya
H.C.C.A. No. 139 of 2001
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act, confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mate Ntuara & 5 others v Rithaa Ntuara & 2 others", Case Analysis (2010). Civil Appeal 151 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/52/eng@2010-11-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.