BRAMBLE

Shuma v. Kitaa (1970) HCD 241

Civ. App. (PC) 49-A-68; 18/6/70; Bramble, J.

The appellant’s case was that he was given the land in 1947 by the proper authority and that in 1955 respondent’s father entered upon it and drove away his employees: that in 1950 thirteen people had wrongly taken possession and they were ordered to vacate by the chief; the respondent had claimed that he bought the kihamba from one of those people. The appellant had taken no action for over twelve years because of illness and political activities. He did not bring any witness to prove that the land in question had been allocated to him although there was some evidence that he was in possession sometime in 1950. The respondent, in possession at the present time, claimed that he inherited the kihamba from has father, who bought it from one Kiboko in 1953. Kiboko confirmed that he had sold it to the respondent’s father more than 14 years ago. He said that the land had been allocated to him by the headman. Both the assessors in the primary court were of the opinion that the appellant had not established his claim. The trial magistrate was in agreement and held that: - ‘The law is that the claimant or this plaintiff bears the burden of proof and has to establish his case beyond reasonable doubt by producing evidence. Plaintiff in this case has not discharged his burden.’

            Held:

(1) “There is a misdirection is holding that there must be proof beyond reasonable doubt in a civil case. A civil case is decided on the balance of probabilities and proof beyond reasonable doubt applies to criminal cases only. This misdirection is not, however, fatal in that on the evidence the appellant did not discharge the burden as required in a civil case.”

 (2) Appeal