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Court of AppealPartially AllowedCivil Appeal No. 154 of 2018· [2020] KECA 636 (KLR)

Andrew Rimba Chengo & 2 Others v Kasungu Nyundo & Another [2020] KECA 636 (KLR)

Court of Appeal
22 May 2020
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
5,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that Kenya's Environment and Land Court can decide community land disputes even before land adjudication, but a court cannot award land ownership to a party who never claimed it.

What this practically means

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Executive summary

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The appellants, members of the Waparwa clan, sued the respondents of the Amwathoya/Wathoya clan claiming to be the legal and beneficial owners of unadjudicated land in Kayafungo/Mwanamwinga, relying on an alleged permission granted to the respondents' grandfather Nyundo Baya, a sale agreement dated 2nd September 1973, and the determinations in the Chome Ngala dispute. The Environment and Land Court (A. Omollo, J.) dismissed their claim but found the respondents entitled to the land by ancestry. On appeal, the Court of Appeal first confirmed the ELC's jurisdiction: it is empowered under Article 162(2)(b) and section 13 of the Environment and Land Court Act to hear disputes relating to community land; section 30 of the Land Adjudication Act did not bar the suit because no adjudication section had been declared; and the Community Land Act, commenced in 2016 after the suit was filed, could not apply retrospectively. On the merits, the Court agreed that the suit land was the land given to Nyundo Baya and featured in the Chome Ngala dispute, but held that the appellants had not proved ownership: the 1973 sale agreement could not be enforced, being unsupported, not signed by the parties concerned, and statute-barred, and the evidence showed the respondents' family remained in occupation. However, the Court faulted the trial judge for declaring the respondents entitled to the land, since they had filed no counterclaim and parties are bound by their pleadings. The appeal was accordingly allowed only on that limb; the dismissal of the appellants' claim was affirmed and each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over unadjudicated community land

Holding

The ELC had jurisdiction; neither the Land Adjudication Act nor the Community Land Act ousted it in this case.

Reasoning

The ELC is expressly empowered under Article 162(2)(b) and section 13 of the Environment and Land Court Act to determine disputes relating to community land. Section 30 of the Land Adjudication Act bars suits only within a declared adjudication section, and no declaration was shown for Kayafungo/Mwanamwinga. The Community Land Act, commenced in 2016 after the 2012 suit, could not be applied retrospectively absent express provision.

p. 4
02

Whether the appellants proved ownership of the suit land

Holding

The appellants failed to establish ownership on a balance of probabilities.

Reasoning

The sale agreement of 2nd September 1973 was unreliable: the plaintiffs were not parties to it, had no letters of administration for the buyer's estate, and any claim under it was statute-barred. The judgment in the Chome Ngala dispute referred to a purchaser, Samuel Kitsao, different from Fondo Kapombe in the agreement. Evidence showed the respondents' family remained in occupation rather than having returned the land.

p. 7
03

Whether the trial court could award the suit land to the respondents without a counterclaim

Holding

The trial judge erred in declaring the respondents entitled to the suit land since they never counterclaimed; the suit should simply have been dismissed.

Reasoning

Parties are bound by their pleadings (Galaxy Paints Co. Ltd v Falcon Guards Ltd). The respondents only filed a defence and sought no declaration of ownership. Having found the appellants' claim failed, the judge should have stopped at dismissal; instead he conferred ownership of unadjudicated land on the respondents, exceeding the pleadings.

p. 7
04

Whether the suit land was the same land as in the Chome Ngala dispute

Holding

The court agreed with the trial judge that the land given to Nyundo Baya by Charo Ruo is the suit land and the same land referred to in the Chome Ngala dispute.

Reasoning

Excerpts from the Kaloleni judgment showed Nyundo Baya stayed on and was born on the land in dispute there; Kazungu Nyundo confirmed inheriting it; and a Waparwa witness named Kazungu Nyundo as a neighbour. Although the unadjudicated nature of the land and the absence of a site visit made precise identification difficult, the cumulative evidence disclosed a correlation.

p. 6

Legal principles established

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  • The Environment and Land Court is empowered to determine disputes relating to community land, even where the land is unadjudicated, unless the area has been declared an adjudication section under section 5 of the Land Adjudication Act.
  • Section 30 of the Land Adjudication Act bars civil proceedings only where the land is within a declared adjudication section whose register has not become final; absent such declaration, the court's jurisdiction is unaffected.
  • The Community Land Act does not apply retrospectively to suits filed before its commencement on 21st September 2016.
  • A trial court is bound by the parties' pleadings and cannot award relief, such as ownership, that no party has pleaded or counterclaimed for.
  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal against the judgment of the Environment and Land Court dated 31st August 2017 is dismissed
  2. 2.The appeal against the award of the suit land to the respondents is allowed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 63(2)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 62
  • Environment and Land Court ActSection 13
  • Land Adjudication ActSections 5 and 30
  • Land Consolidation ActNot specified
  • Community Land ActNot specified
  • Interpretation and General Provisions ActSection 23(3)(a)
  • Limitation of Actions ActSection 7
  • Law of Succession ActCap 160

Cases cited (6)

  • M'ithana M'tguringa vs Murithi M'amburubua
    [2016] eKLR
  • Kenya Ports Authority vs Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Abok James Odera t/a A. J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others
    [2012] eKLR; SC Application No. 2 of 2011
  • Galaxy Paints Co. Ltd vs Falcon Guards Ltd
    (2000) EA 885
On appeal from
Environment and Land Court at Mombasa
ELC No. 238 of 2012
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction; dispute concerning community land within Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

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, "Andrew Rimba Chengo & 2 Others v Kasungu Nyundo & Another [2020] KECA 636 (KLR)", Case Analysis (2020). Civil Appeal No. 154 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/636/eng@2020-05-22

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