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Court of AppealDismissedCivil Appeal No. 144 of 2014· [2018] KECA 859 (KLR)

Dellian Langata Limited v Symon Thuo Muhia, Mary Njoki Thuo, Agricultural Finance Corporation, The Nairobi City Council & The Council of Legal Education

Court of Appeal
26 January 2018
Martha Karambu KoomeM. K. KoomeHOH. M. OkwenguPKP. O. Kiage
4,522 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 confirmed a landowner cannot block a public road reserve and cannot raise brand-new legal arguments for the first time on appeal.

What this practically means

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Executive summary

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The Court of Appeal (Koome, Okwengu & Kiage, JJ.A) dismissed an appeal by Dellian Langata Limited against a High Court judgment (Rawal J, 31 March 2009) in two consolidated 1993 suits. The High Court had declared unlawful the appellant's closure of a 9-metre road reserve (LR 3591/3/R, also referred to as LR 3591/39) serving the respondents' Langata property, held the appellant had no claim over it as a public road of access, and ordered its surrender to the Commissioner of Lands. On appeal, the appellant pursued only two grounds contending that the learned Judge ignored the procedure under Section 8 of the Public Roads and Roads of Access Act for establishing a public road, thereby usurping the Minister's powers and acting without jurisdiction. The Court framed two issues: whether it could determine new unpleaded issues, and whether the disputed road was public or private. Applying Securicor, Wachira and related authority, it declined to entertain the PRRA Act grounds as unpleaded, untraversed new issues raised as an afterthought. On the merits, it distinguished a public road from a private road of access under Sections 9 and 13 of the PRRA Act, found the road was reserved at sub-division with Council approval and designated as a public road reserve in correspondence, and that the appellant never applied under the Act. It affirmed the trial court's findings, held public interest overrides individual claims, dismissed the appeal in its entirety, and ordered each party to bear its own costs.

Key legal issues

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01

Jurisdiction to determine new unpleaded issues on appeal

Holding

The Court declined jurisdiction over the PRRA Act grounds because they were not pleaded or contested at trial; the discretion to admit new points is exercised sparingly.

Reasoning

The general principle is that a new point not raised in pleadings cannot found a judgment. The discretion to admit a new point on appeal requires that full justice be done, all evidence be on record, no disputes of fact arise, and the new point not be inconsistent with the case at trial. Here DW1 never testified on the Section 8 procedure, the issue was never traversed, and raising it on appeal was an afterthought akin to a fishing expedition.

p. 6
02

Whether the disputed road is a public road or a private road of access

Holding

The road was a public road of access; the appellant failed to prove it was private, and the trial court's finding was affirmed.

Reasoning

The Court distinguished a public road, set apart and designated for public use, from a road of access, which arises from an application under Sections 9 and 13 of the PRRA Act and is by nature private. The road was reserved as a 9m road at sub-division with Council approval, correspondence designated it a public road reserve, and no application under the PRRA Act was ever made by the appellant. On a balance of probability the road is public.

p. 7
03

Public interest versus private claims over land

Holding

Public interest prevails over individual attempts to negate public rights of access.

Reasoning

The Court held the appellant's obstruction of the road infringed the respondents' right of access and reflected an attempt to trump public rights, given other sub-divided plots were meant for schools and public amenities. It endorsed the utilitarian philosophy from East African Cables that the alternative producing the greatest happiness for the greatest number should be chosen.

p. 7

Legal principles established

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  • A new point not raised in the pleadings may not be allowed or used as a basis of judgment, though the Court has a sparing discretion to admit a new point on appeal where full justice can be done, all evidence is on record, and no disputes of fact arise.
  • An appellate court will not entertain issues that were not pleaded, not contested and not traversed at trial.
  • A public road is set apart and designated as such and is available for use by all members of the public, whereas a road of access connotes private usage arising from an application under the PRRA Act.
  • Where a road is reserved as a public road through sub-division and planning authority conditions, the Minister's power under Section 8 of the PRRA Act to create a public road is inapplicable.
  • The interest of the public overrides that of an individual in conflicts between public and private claims over land.

Court orders

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  1. 1.The appeal fails in entirety and is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Public Road and Roads of Access ActCap 399, definition of public road; Sections 8(1) & (2), 9, 13, 13(2), 13(8)
  • Interpretation and General Provisions ActSections 43 and 44
  • Land Planning ActCap 303
  • Development and the use of Land (Planning) Regulations1961
  • Physical Planning ActNo. 6 of 1996
  • Government Lands ActCap 280
  • East African Land Regulations1897
  • Crown Lands Act1902

Cases cited (11)

  • KARISA CHENGO & 2 OTHERS vs. REPUBLIC
    [2014] eKLR

    Duties imposed on a statutory office can only be performed by holders of that office.

  • SAMUEL KAMAU MACHARIA & ANOTHER vs. KENYA COMMERCIAL BANK
    [2012] eKLR
  • OWNERS OF MOTOR VESSEL ‘LILIAN S’ vs. CALTEX OIL KENYA LTD
    [1989] KLR 1

    Anything done without jurisdiction is a nullity.

  • PETERS vs. SUNDAY POST
    [1958] EA 434

    Appellate court's jurisdiction in reviewing evidence must be exercised with caution.

  • SELLE & ANOTHER vs. ASSOCIATED MOTORS BOAT LTD
    [1968] E.A 123

    Caution in interfering with trial court's findings of fact.

  • CAPTAIN HENRY GANDY vs. CASPAR AIR CHARTERS LTD
    [1956] 23 LR 139

    Matters not pleaded or traversed at trial cannot form a ground of complaint on appeal.

  • STANDARD CHARTERED FINANCIAL SERVICES LTD & 2 OTHERS vs. MANCHESTOR OUTFITTERS (SUITING DIVISION) LIMITED (NOW KNOWN AS KING WOOLEN MILLS LTD & 2 OTHERS
    [2016] eKLR

    New issues cannot be introduced at the appellate stage.

  • GIRDHARI LAL VIDYARTHI vs. RAM RAKHA
    (1957) EA 527

    A party cannot allege on appeal a case different from that pleaded at trial.

  • SECURICOR (KENYA) LTD vs. E.A DRAPPERS LTD AND ANOR
    [1987] KLR 338

    Discretion to admit a new point on appeal must be exercised sparingly.

  • WACHIRA vs. NDANJERU
    (1987) KLR 252

    Platt JA's summary of principles on taking a point of law for the first time on appeal.

  • EAST AFRICAN CABLES LIMITED vs. THE PUBLIC PROCUREMENT COMPLAINTS, REVIEW & APPEALS BOARD AND ANOTHER
    [2007] eKLR

    Public interest should take precedence; utilitarian philosophy of greatest happiness for the greatest number.

On appeal from
High Court at Nairobi
HCCC No. 3316 of 1993 (consolidated with HCCC No. 3311 of 1993)
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court (Constitution and Appellate Jurisdiction Act); the judgment does not cite a specific provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Dellian Langata Limited v Symon Thuo Muhia, Mary Njoki Thuo, Agricultural Finance Corporation, The Nairobi City Council & The Council of Legal Education", Case Analysis (2018). Civil Appeal No. 144 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/859/eng@2018-01-26

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