ITA MBARIKO v JOSPHAT NJIRU NJOKA [2008] KEHC 3624 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Civil Appeal 48 of 2004

ITA MBARIKO……………………………………………….APPELLANT

VERSUS

JOSPHAT NJIRU NJOKA…………..………………….RESPONDENT

JUDGMENT

The appellant filed suit in Siakago SRM CC No. 4 of 2004.  The suit was dismissed by the court.  The Appellant has filed 6 grounds of appeal.  The crucial evidence is of the agreement to exchange the trees.  None of the Appellant’s witnesses were able to testify positively about the agreement alleged by the Appellant (Plaintiff).  His witnesses were his son and nephew whose evidence the Trial Magistrate found not independent.  The (defendants) Respondents witnesses are some of the elders who are said to have tried to resolve the case.  They gave hearsay evidence on the agreement.  Their evidence was hearsay and therefore unreliable.  There was no evidence of the value claimed by the Appellant.

On the whole, I find no evidence was produced to warrant a decision for Appellant.

This Appeal is now dismissed.

Dated this 1st February, 2008.

J. N. KHAMINWA

JUDGE

1/2/2008

Khaminwa – Judge

Njue – Clerk

Mr. Ithiga HB

Read in open court.

J. N. KHAMINWA

JUDGE