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Court of AppealPartially AllowedSecond Appeal from Malindi ELC Civil Appeal No 7 of 2019· [2023] KECA 1185 (KLR)

Mungu'ra v Njagi (Civil Appeal E041 of 2021) [2023] KECA 1185 (KLR)

Court of Appeal of Kenya
6 October 2023
2,306 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a Land Registrar's summons fixing disputed boundaries is a boundary dispute, and ordered Kilifi's Registrar to fix the contested boundary.

What this practically means

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Executive summary

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This is a second appeal from the Environment and Land Court at Malindi (Olola, J.), which on February 19, 2021 dismissed the appellant's appeal against a decision of the Land Registrar, Kilifi dated May 3, 2019 declining to review and fix boundaries between the appellant's parcel Gede/Mijombani/1583 and neighbouring parcels. The appellant, who purchased her plot from the respondent, complained that the respondent had moved boundary marks and blocked the access road shown on the survey map. The Land Registrar, after a site visit, reported that the road on the map did not exist on the ground, that an unadopted road existed on the ground, and that affected parties should apply to have common boundaries changed to adopt the existing road. The ELC held that what was before the Registrar was not a boundary dispute under Sections 18(1) and 19(1) of the Land Registration Act. Allowing the second appeal, the Court of Appeal (Kairu, Nyamweya and Odunga, JJ.A) held that the Registrar's notice of 22nd March 2019, expressly invoking sections 18(3) and 19(1) of the Land Registration Act and section 21(2) of the repealed Registered Land Act to determine a disputed boundary, showed that the dispute was a boundary dispute. The ELC Judge had failed to consider that notice, a failure of relevant matters amounting to a point of law on which a second appeal may be entertained. The Court set aside the ELC judgment, allowed the appeal against the Registrar's decision, and directed the Land Registrar, Kilifi to review and fix the boundaries, with costs to the appellant for both the appeal and the ELC proceedings.

Key legal issues

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Whether the dispute before the Land Registrar, Kilifi was a boundary dispute under Sections 18(1) and 19(1) of the Land Registration Act

Holding

It was a boundary dispute; the Registrar's notice of 22nd March 2019 expressly recorded an application under sections 18(3), 19(1) and section 21(2) of the repealed Registered Land Act to determine the disputed boundary, and the ELC Judge erred in failing to consider that notice

Reasoning

The notice dated 22nd March 2019 summoning the parties was part of the record before the ELC and expressly invoked section 18(3) and section 19(1) of the Land Registration Act and section 21(2) of the Registered Land Act (repealed) to determine a disputed boundary. The Judge, in concluding there was no boundary dispute, made no reference to or consideration of the contents of that notice. Had he done so, he would have concluded, as the Court did, that what was referred to the Registrar was a boundary dispute. His failure to consider relevant matters was a point of law warranting interference on second appeal.

p. 4
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The scope of a second appeal to the Court of Appeal

Holding

Confined to matters of law, with the recognised exceptions and the gloss that failure to re-evaluate evidence resulting in a wrong conclusion is a point of law

Reasoning

Relying on Stanley N. Muriithi & another v Bernard Munene Ithiga and the passage from Kenya Breweries Limited v Godfrey Odoyo adopted therein, the Court restated that on second appeal it resists delving into matters of fact, unless the courts below considered matters they should not have, or failed to consider matters they should have, or the decision is perverse; and that failure to re-evaluate evidence leading to a wrong conclusion is itself a point of law.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law, but failure by the first appellate court to re-evaluate evidence leading to a wrong conclusion is a point of law
  • A first appellate court that fails to consider relevant material on record before reaching its conclusion may be interfered with on second appeal
  • Where a statutory notice invoking boundary-determination provisions summons parties to fix a disputed boundary, the dispute before the Land Registrar is a boundary dispute

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and order of the ELC dated February 19, 2021 set aside
  3. 3.Substituted therefor an order allowing the appellant's appeal against the decision of the Land Registrar given on May 3, 2019
  4. 4.Boundaries between Land Parcel Number Gede/Mijomboni/1583 and Gede/Mijomboni/1582 to be reviewed and fixed by the Land Registrar, Kilifi as provided by law
  5. 5.Appellant to have costs of the appeal and of the proceedings before the ELC

Authorities

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Legislation

  • Land Registration ActSection 18(1), 18(3), 19(1), 79(1)(c)
  • Registered Land Act (repealed)Section 21(2)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 72(1)

Cases cited (2)

  • Stanley N. Muriithi & another vs. Bernard Munene Ithiga
    [2016] eKLR
  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR (Civil Appeal No 127 of 2007)
On appeal from
Environment and Land Court at Malindi
Civil Appeal No 7 of 2019
Jurisdiction invoked
Second appeal to the Court of Appeal confined to matters of law under Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mungu'ra v Njagi (Civil Appeal E041 of 2021) [2023] KECA 1185 (KLR)", Case Analysis (2023). Second Appeal from Malindi ELC Civil Appeal No 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1185/eng@2023-10-06

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