Isca Adhiambo Okayo v Kenya Women Finance Trust [2016] KECA 603 (KLR)
The bottom line
#The Court of Appeal dismissed a woman's claim against Kenya Women Finance Trust because she could not prove the people who seized her property were the bank's agents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court was right in holding that the appellant failed to establish her case in accordance with Section 107(1) of the Evidence Act
- 2.Whether the appellant discharged the burden of proving, on a balance of probabilities, that the persons who attached her property were employees, servants or authorized agents of the respondent
Key legal issues
#Whether the appellant discharged the burden of proof under Section 107(1) of the Evidence Act
The Court of Appeal affirmed the High Court's finding that the appellant failed to prove, on a balance of probabilities, that the persons who attached her property were employees, servants or authorized agents of the respondent, and that the High Court correctly found the respondent discharged its evidential burden.
The Court reviewed the testimony of all four prosecution-side witnesses and found the evidence did not establish the identity of the culprits as agents of the respondent. The appellant initially said she did not know the people, then described shifting accounts; PW2 and PW3 did not assist on identification; the Chief arrived after the fact. The Court noted the appellant could have established registration numbers of the motorcycle and vehicle to connect them to the respondent. The evidence supported the suggestion that members of the women's group, not the respondent, may have carried out the attachment.
Legal principles established
#- A party who desires a court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist; failure to identify the persons allegedly acting for a defendant, where it was possible to do so, means liability has not been established.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Homa-Bay
- HCC Appeal No. 9 of 2014
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework (the judgment does not cite a specific provision; it is a second appeal from the High Court)
Relief refused
#The appellant's appeal against the High Court's setting aside of the Magistrate's court judgment (Kshs.33,000.00, return of 1700 matts, general damages of Kshs.100,000.00, interest and costs)
There was no evidence on a balance of probabilities that the culprits were employees, servants or authorized agents of the respondent
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
there was no evidence, on a balance of probabilities, to support the finding that that the culprits who “trespassed” into the appellant’s person or premises were “employees, servants and or authorized agents” of the respondent so as to found liability on the part of the respondent
It would, perhaps, have been useful for the appellant to establish the registration numbers of the motorcycle and the vehicle and to establish a connection with the respondent.
Accordingly, the appeal is devoid of merit. It is dismissed with costs to the respondent. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isca Adhiambo Okayo v Kenya Women Finance Trust [2016] KECA 603 (KLR)", Case Analysis (2016). Civil Appeal No. 19 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/603/eng@2016-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.