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Court of AppealDismissedCivil Appeal 331 of 2003· [2010] KECA 309 (KLR)

Maroa Wambura Gatimwa v Sabina Nyanokwe Gatimwa & 5 others [2010] KECA 309 (KLR)

Court of Appeal of Kenya
30 April 2010
EGE.M. GithinjiPWP.N. WakiAVAlnashir Visram
4,673 words in judgment
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The bottom line

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Kenya's Court of Appeal ordered a man to give 12 acres of his land to relatives whose ancestral land he had wrongfully sold.

What this practically means

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Executive summary

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This was a first appeal from the High Court at Kisii (Wambiliangah, J.) in which Sabina Nyanokwe Gatimwa and her five sons, descendants of a woman-to-woman marriage (ogotetwa busino) under Kuria customary law, had obtained a decree requiring Maroa Wambura Gatimwa to excise 12 acres from parcel Bugumbe/Masaba/106 and transfer it to them. The Court of Appeal (Githinji, Waki and Visram, JJA) delivered a single judgment of the court dismissing the appeal. It declined to entertain a limitation defence raised for the first time on appeal, holding that limitation must be specifically pleaded under Order VI rule 4(1) of the Civil Procedure Rules. It held that although first registration does not bar a trust, the pleaded trust over parcel 106 was unsupported by evidence, since no witness showed that any of Wantiko's land was annexed to the appellant's parcel. It also faulted the trial judge for relying on an unpleaded and unproved Kuria customary rule that one who alienates another's land must share his own. However, the Court affirmed the findings of fact that the appellant wrongfully alienated the respondents' ancestral land entitlement to two Kisiis who became registered owners and were not parties to the suit. Adopting the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, it upheld the remedy of excision of 12 acres from the appellant's parcel, but for different reasons from the trial court, with default execution by the deputy registrar. Each party bears its own costs of the appeal.

Key legal issues

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01

Whether the limitation defence could be entertained on appeal

Holding

Declined, as it was neither pleaded nor supported by evidence or submissions at trial.

Reasoning

Order VI rule 4(1) of the Civil Procedure Rules requires matters such as limitation to be specifically pleaded. An unpleaded issue may only be decided if it was left to the court at trial through evidence and submissions. None existed here, so the Court refused to consider the issue for the first time on appeal.

p. 9
02

Whether a trust arose over Bugumbe/Masaba/106

Holding

No trust was established over the appellant's registered parcel; the evidence showed he had alienated the respondents' entitlement, not that he held his own land in trust.

Reasoning

The pleading alleged a trust over a 10.5-hectare portion of parcel 106, but no witness testified that any of Wantiko's land was annexed to and registered in the appellant's parcel. The trial judge made no finding on trust. First registration is no bar to declaring a trust, but there must be probative evidence supporting it.

p. 9
03

Whether the trial judge could rely on an unpleaded Kuria custom that one who alienates another's land must share his own

Holding

He could not; the custom was neither pleaded nor proved by evidence.

Reasoning

The trial judge invoked a Kuria customary rule drawn apparently from his own experience. No pleading or witness evidence supported it, so its application was erroneous, and the Court agreed with the appellant's criticism of the judgment on that basis.

p. 10
04

The appropriate remedy for wrongful alienation of the respondents' ancestral land entitlement

Holding

The appellant must compensate the respondents by excising 12 acres from his own parcel and transferring it to them.

Reasoning

The findings that the appellant wrongfully sold the respondents' entitlement to two Kisiis, now registered owners who were not parties, stood. Equity requires a remedy. Of the options — monetary valuation, purchase of equivalent land, excision from his parcel, or lump-sum damages — the Court chose excision to achieve finality, apply the overriding objective, and avoid rendering the respondents landless.

p. 11

Legal principles established

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  • An appellate court cannot substitute its own factual findings for those of a trial court unless there is no evidence to support the findings or the findings are plainly wrong.
  • A statute of limitation is a matter that must be specifically pleaded; a court may not decide an unpleaded limitation defence unless evidence and submissions were led on it at trial.
  • First registration under the Registered Land Act does not defeat a trust, but a trust over registered land can only be declared on probative evidence.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall compensate the respondents for the loss of their land by excising a portion of twelve (12) acres from his land, Bugumbe/Masaba/106, which portion shall be transferred to the respondents
  3. 3.The parties shall equally bear the costs of subdivision and transfer of the 12 acres to the respondents
  4. 4.In default of compliance within sixty days, all necessary subdivision and transfer documents shall be executed by the deputy registrar of the superior court on behalf of the appellant at the appellant's cost
  5. 5.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Judicature Actsection 3(2)
  • Civil Procedure RulesOrder VI rule 4(1)
  • Civil Procedure RulesOrder XXXVI
  • Appellate Jurisdiction Actsections 3A and 3B
  • Limitation of Actions Act
  • Registered Land Act
  • Restatement of African Law (Cotran), Vol. 1page 74/75

Cases cited (5)

  • Peters vs. Sunday Post Ltd.
    [1958] EA 424
  • Kirunga vs. Kirunga & Another
    [1988] KLR 438
  • Selle v Associated Motorboat Co.
    [1968] EA 123
  • Vyas Industries v Diocese of Meru
    [1982] KLR 114
  • Mumo v Makau
    [2002] 1 EA 170
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 129 of 2002
Jurisdiction invoked
First appeal under the Appellate Jurisdiction Act (sections 3A and 3B cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Maroa Wambura Gatimwa v Sabina Nyanokwe Gatimwa & 5 others [2010] KECA 309 (KLR)", Case Analysis (2010). Civil Appeal 331 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/309/eng@2010-04-30

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