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Court of AppealDismissedCivil Appeal No. 196 of 2012

Grace Mmbone Kamidi v Hudson Ambani & 2 others [2019] KECA 28 (KLR)

Court of Appeal
30 December 2019
2,504 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 ruled that trespass and boundary disputes over registered land belonged to Land Disputes Tribunals, not the High Court, and dismissed the appeal with costs.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Kisumu against the judgment of the High Court at Kakamega (Lenaola, J., judgment delivered on his behalf by Chitembwe, J. on 2nd February 2012) dismissing the deceased's suit seeking eviction of the respondents and a permanent injunction over parcel Kakamega/Lugari/1340. The deceased was substituted by his personal representative, Grace Mmbone Kamidi, after his death in 2013. The appeal was heard by Githinji, Okwengu and J. Mohammed, JJ.A, but delivered on 30th December 2019 under Rule 32(3) of the Court of Appeal Rules by Mohammed and Okwengu, JJ.A, Githinji, JA having retired. Mohammed, JA wrote the lead judgment; Okwengu, JA concurred fully. The court framed the sole issue as whether the learned Judge misdirected himself in dismissing the appellant's case. It held that under section 159 of the repealed Registered Land Act as read with section 3(1) of the repealed Land Disputes Tribunal Act, disputes over boundaries and trespass to registered land fell within the exclusive jurisdiction of the Land Disputes Tribunal, not the High Court, which could only entertain points of law from the Appeals Committee. On the merits, unchallenged reports by the Land Registrar and District Land Surveyor established that the respondents had not trespassed; the appellant herself had encroached onto the respondents' land. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the learned Judge misdirected himself in his finding dismissing the appellant's case
  2. 2.Whether the High Court had jurisdiction over the trespass dispute given the RLA and Land Disputes Tribunal Act regime
  3. 3.Whether the respondents trespassed onto the appellant's parcel Kakamega/Lugari/1340

Key legal issues

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01

Jurisdiction over boundary and trespass disputes on registered land under the repealed Registered Land Act and Land Disputes Tribunal Act

Holding

The proper forum for a trespass dispute under section 159 of the RLA as read with section 3(1) of the LDTA was the Land Disputes Tribunal, not the High Court; the High Court could only come in at the tail end on points of law from the Appeals Tribunal.

Reasoning

Section 21(2) of the RLA vested boundary determination in the Registrar, but the LDTA amended section 159 of the RLA to expressly recognise the Tribunal's jurisdiction over boundary division, occupation and trespass matters. The determination of boundary disputes having expressly been divested from the courts and the Registrar and vested in the Tribunal by later legislation could only be entertained by the Tribunal. The High Court's role was limited to hearing points of law from the Provincial Appeals Committee.

p. 3
02

Whether the High Court correctly found no trespass by the respondents

Holding

Yes. The reports of the Land Registrar and District Land Surveyor, unchallenged and never successfully appealed, established that the respondents had not trespassed onto the appellant's land; indeed the appellant was the encroaching party.

Reasoning

The Land Registrar's report in the criminal case found the respondents had not forcibly entered the appellant's parcel, on which basis they were acquitted, and no appeal was lodged. A further report of 26th November 1998 by District Land Surveyor A.O. Akello concluded the appellant had encroached onto the respondents' land. The appellant's appeal against that report's outcome was unaccounted for. The trial judge relied on these expert reports and reached the correct decision.

p. 3

Legal principles established

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  • On a first appeal, the Court of Appeal has a duty to analyze and re-assess the evidence on record and reach its own conclusions, bearing in mind it did not see or hear the witnesses.
  • The Court of Appeal will not lightly differ from the findings of fact of a trial judge and will only interfere if they are based on no evidence.
  • Under the Registered Land Act (repealed) as read with the Land Disputes Tribunal Act (repealed), disputes concerning boundaries of registered land and trespass to land fell to be determined by the Land Disputes Tribunal, not the High Court.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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

majority

Wrote the judgment

Wrote the lead judgment analysing the boundary/trespass dispute, the RLA and LDTA jurisdictional regime, and concluding the High Court lacked jurisdiction over the trespass claim and that the appeal lacked merit.

Accordingly, this appeal lacks merit and is dismissed with costs to the respondents.p. 4
concurring

Wrote the judgment

Concurred fully with the lead judgment of Mohammed, JA, noting the judgment was delivered under Rule 32(3) of the Court of Appeal Rules as Githinji, JA had retired.

I have read the draft Judgment of my sister Mohammed, JA. The facts relating to this appeal are well captured in the Judgment. I fully concur with the reasoning of my sister Judge.p. 4
majority
On appeal from
High Court of Kenya at Kakamega
HCCC No. 83 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules; jurisdiction of the High Court over registered land disputes in issue under section 159 of the Registered Land Act (repealed) as read with section 3(1) of the Land Disputes Tribunal Act (repealed)

Relief refused

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The appellant's appeal against the entire judgment of the High Court dismissing the suit (eviction order and permanent injunction)

The respondents had not trespassed onto the appellant's land and the High Court reached the correct decision in dismissing the suit

p. 4

Costs

The appeal is dismissed with costs to the respondents

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.

Accordingly, this appeal lacks merit and is dismissed with costs to the respondents.
p. 4final orders / disposition
The proper forum for determination of a trespass dispute in accordance with section 159 of the RLA as read with section 3(1) of the LDTA was the Land Disputes Tribunal and not the High Court.
p. 3jurisdiction over trespass disputes on registered land
As this is a first appeal, it is this Court’s duty to analyze and re-assess the evidence on record and reach its own conclusions bearing in mind a precaution that it did not have the benefit of seeing and accessing the demeanor of the witnesses.
p. 2duty of a first appellate court
The inevitable conclusion that I arrive at is that the respondents have not trespassed onto the appellant's land. With respect, the learned Judge reached the correct decision in dismissing the suit.
p. 4finding of no trespass

Issues in the judgment

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minor

The coram lists Githinji, JA as a member of the bench, but the concurring judgment records that he had ceased to hold office by retirement before delivery, so his participation in the decision is unclear.

minor

The lead judgment shifts internally between first-person singular and plural narration, and the date of the original subdivision is incomplete in the text ('On 8th deceased subdivided the parcel').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Mmbone Kamidi v Hudson Ambani & 2 others [2019] KECA 28 (KLR)", Case Analysis (2019). Civil Appeal No. 196 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/28/eng@2019-12-30

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