Grace Mmbone Kamidi v Hudson Ambani & 2 others [2019] KECA 28 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misdirected himself in his finding dismissing the appellant's case
- 2.Whether the High Court had jurisdiction over the trespass dispute given the RLA and Land Disputes Tribunal Act regime
- 3.Whether the respondents trespassed onto the appellant's parcel Kakamega/Lugari/1340
Key legal issues
#Jurisdiction over boundary and trespass disputes on registered land under the repealed Registered Land Act and Land Disputes Tribunal Act
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.
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.
Whether the High Court correctly found no trespass by the respondents
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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
- 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
#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
Costs
The appeal is dismissed with costs to the respondents
Quotable passages
#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.
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.
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.
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.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.