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Court of AppealPartially AllowedCivil Appeal No. 80 of 2017

Coast Water Services Board v Juma Abdalla Vitu & 4 others [2018] KECA 380 (KLR)

Court of Appeal of Kenya
5 July 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a Kshs.2.8 million contract claim because the claimants never proved the contract actually existed.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) allowed the appeal of Coast Water Services Board against a judgment of Omollo, J. of the Environment and Land Court awarding the 1st to 3rd respondents Kshs.6,000 monthly compensation from 1976 plus Kshs.2,778,000 accrued, on the basis of an alleged contract under which the government and SIDA would pay monthly consideration for boreholes sunk on their deceased father's land. The respondents sued the Board and the two water companies as successors allegedly engaged in harvesting the water. The trial court entered judgment against the Board in prayer (e) of the plaint. The appellant attacked the judgment on 17 grounds, principally that the claim founded on a 1976 contract was statute-barred under Section 4(1)(a) of the Limitation of Actions Act, that the Water Appeals Board had exclusive jurisdiction, that the respondents departed from their pleadings, and that the burden of proof was wrongly shifted. The Court of Appeal, deciding the appeal on its re-evaluation of the evidence as a first appeal, held the pivotal issue was whether the respondents had proved the existence of the contract at all - an issue the trial court misdirected herself by assuming. The 1st respondent's evidence was hearsay, and Salim's contradictory testimony as to the contracting parties destroyed his credibility. The contract's existence not being established, the suit had no legs to stand on and was dismissed. The appeal was allowed with costs, including costs at the ELC. The judgment binds lower courts on burden of proof and the hearsay character of second-hand testimony as to contract terms.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st, 2nd and 3rd respondents established the existence of the alleged 1976 contract
  2. 2.Whether the 1st respondent's testimony founded on information from a non-testifying councillor was hearsay
  3. 3.Whether Salim Mabanda's contradictory evidence as to the parties to the contract was credible
  4. 4.Whether the burden of proof as to the location of the boreholes lay on the appellant

Key legal issues

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01

Whether the respondents established the existence of the alleged 1976 contract

Holding

The trial court misdirected itself by assuming the existence of the contract without first determining whether the respondents had proved it; they had not.

Reasoning

The starting point should have been proof of the contract's existence. The 1st respondent was not present at execution and relied on hearsay from a councillor who never testified. Salim, allegedly present, could not consistently identify the contracting parties, at one point saying it was with the government and at another with SIDA, undermining his credibility and failing the threshold of proof.

p. 3
02

Allocation of the burden of proof

Holding

The burden lay on the respondents, as parties asserting the contract, under Sections 107 and 108 of the Evidence Act, not on the appellant.

Reasoning

The court invoked Section 107 (whosoever desires a court to give judgment as to a legal right dependent on facts must prove those facts) and Section 108 (the burden lies on the person who would fail if no evidence were given on either side) to reject the appellant's complaint that the trial court shifted the burden onto it.

p. 3
03

First appellate court's duty on facts

Holding

As a first appellate court, the Court of Appeal must revisit and evaluate the evidence and reach its own conclusion, subject to the stated limitations on interfering with trial court findings of fact.

Reasoning

The court restated the classic first-appeal duty, noting it had not seen the witnesses testify, and cited J. S. M. v E. N. B. [2015] eKLR. On its own re-evaluation, it found the evidence of the contract's existence fell short, warranting reversal of the trial judgment.

p. 3

Legal principles established

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  • A plaintiff asserting a contractual right bears the burden of proving the existence of the contract; a trial court may not assume its existence without evidentiary foundation
  • Testimony based on information from a person who did not testify is hearsay and incapable of establishing the existence of a contract
  • A first appellate court will not interfere with findings of fact by the trial court unless they are based on no evidence, on a misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The appeal is allowed with costs
  2. 2.The appellant shall also have costs at the Environment and Land Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority

Wrote the judgment

WK
majority

Wrote the judgment

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
Environment and Land Court of Kenya at Mombasa
Civil Suit No. 124 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers over the Environment and Land Court

Relief refused

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Respondents' claim to enforce the alleged 1976 contract, including the Kshs.6,000 monthly payment and accrued sum of Kshs.2,778,000

The existence of the contract was not established on the evidence, so the suit could not stand

p. 3

Costs

Appeal allowed with costs; the appellant shall also have costs at the ELC (costs awarded to the appellant against the respondents in both courts).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having found that the existence of the contract had not been established, we find that the suit had no legs to stand on and could only be dismissed. Accordingly, we find that appeal has merit and is hereby allowed with costs. The appellant shall also have costs at the ELC.
p. 3Final orders - appeal allowed, suit dismissed, costs
It is trite that he who alleges bears the burden of proof.
p. 3Burden of proof
To us, it was a misdirection on her part not to consider this pertinent issue and assume its existence.
p. 3Trial court's failure to determine existence of contract
This rendered his evidence as hearsay and incapable of establishing the existence of the contract.
p. 3Hearsay evidence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Coast Water Services Board v Juma Abdalla Vitu & 4 others [2018] KECA 380 (KLR)", Case Analysis (2018). Civil Appeal No. 80 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/380/eng@2018-07-05

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