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Court of AppealDismissedCourt of Appeal Civil Appeal (as arising from ELC suit; memorandum of appeal raising four grounds)

Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR)

Court of Appeal of Kenya
16 August 2024
JMJamila MohammedFTF. TuiyottJNJoel Ngugi
8,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed the Anglican Church's appeal, confirming that its church building sits on private land and the landowner's claim survives.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Jamila Mohammed, JA writing the lead judgment, with F. Tuiyott and Joel Ngugi, JJA concurring) against the judgment of the ELC (S. Okongo, J.) of 23 June 2016, which declared that the appellant's church building at Mbita Township stood on plot No. 3699 KasgungaKamreri Adjudication Section (the respondent's land) rather than Plot No. 2102, granted a permanent injunction (suspended for twelve months), and awarded costs to the respondent. The appeal raised three issues: the ELC's jurisdiction, limitation of actions, and the evaluation of evidence. On jurisdiction, the Court held that Section 30 of the Land Adjudication Act requires the written consent of the adjudication officer before instituting civil proceedings concerning an interest in land in an adjudication section; such consent was granted here on 24 August 2003 before the suit was filed. Further, as orally amended, the plaint sought only a declaration as to where the church building stood, not ascertainment of ownership interests, so the dispute was not one reserved to the adjudication machinery. On limitation, the Court endorsed the principle that where a statute bars institution of suit, time does not run until the bar is lifted, and, relying on Muthiora v Kiara, held that a continuing trespass renews the cause of action daily, so the claim was not time-barred — a point the appellant conceded. On the evidence, the Court found the trial judge properly relied on PW1, the Deputy Land Adjudication Officer, who produced a sketch map placing the church on the suit property, while the appellant failed to discharge its burden of proving the church stood on Plot No. 2102. The appeal was dismissed with costs to the respondent, the trial judgment being affirmed in its entirety.

Questions the Court framed

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

  1. 1.Whether the ELC had the requisite jurisdiction to hear and determine the suit giving rise to the instant appeal
  2. 2.Whether the ELC erred in finding that the suit giving rise to the instant appeal was not barred by the Law of Limitations Act
  3. 3.Whether the ELC properly considered the weight of evidence adduced by the appellant to reach its conclusion

Key legal issues

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01

Whether the ELC had jurisdiction over a dispute concerning the location of a church building on land within an adjudication section

Holding

The ELC had jurisdiction: the proceedings, as orally amended, concerned only the location of the church building (a declaratory issue) and not the ascertainment or ownership of interests in land within the adjudication section; in any event, the written consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act had been obtained before the suit was filed.

Reasoning

Section 30(1) of the Land Adjudication Act ousts the jurisdiction of courts over proceedings concerning an interest in land in an adjudication section unless the adjudication officer consents in writing. The consent dated 24 August 2003 was issued by the Land Adjudication Officer for Suba Adjudication Area and the suit was lodged after it was granted. Further, the amended plaint sought only a declaration as to where the church building stood, not ascertainment of rights or title, so the dispute was not one reserved for the adjudication machinery.

p. 12
02

Whether the suit was barred by the Limitation of Actions Act

Holding

The suit was not time-barred. Where a statute prohibits the institution of a suit, time does not run until the prohibition is lifted; and the trespass was of a continuing nature, so limitation did not extinguish the claim.

Reasoning

The trial court held that where institution of a suit is statutorily prohibited, limitation does not run until the prohibition is lifted. Additionally, counsel for the appellant conceded at the hearing that the church building was erected in 1991 and the trespass was continuing; by parity of reasoning with Muthiora v Kiara, every continuance of a trespass is a fresh trespass giving a new cause of action from day to day, so the respondent's claim as a continued tort was not time-barred.

p. 14
03

Whether the trial court erred in its evaluation of the evidence regarding the location of the church building

Holding

The trial court properly analysed the evidence. It relied on the evidence of PW1, the Deputy Land Adjudication Officer, who produced a sketch map showing the church on the suit property; the appellant failed to discharge the burden under Section 109 of the Evidence Act of proving the church was on Plot No. 2102, its own witnesses being uncertain.

Reasoning

The burden of proof as to a particular fact lies on the person who wishes the court to believe in its existence. Once PW1 confirmed the respondent was recorded as owner and produced a sketch map placing the church on the suit property, it was incumbent on the appellant to prove the church stood on Plot No. 2102. The appellant did not summon a witness from the Land Adjudication Department to challenge PW1, and its own witnesses (DW1 and DW3) admitted uncertainty; the letter of allotment did not mention Parcel No. 2102 or any land at all.

p. 15
04

Effect of consent of the adjudication officer on jurisdiction

Holding

The consent under Section 30 is a condition precedent to a valid suit concerning land in an adjudication section; consent given by the adjudication officer permits the suit, though the jurisdictional bar is aimed at ascertainment of interests in land, which is reserved to the adjudication machinery.

Reasoning

Section 30 requires consent before institution of civil proceedings concerning an interest in land in an adjudication section and affects the jurisdiction of courts to hear such disputes. Julia Kaburia establishes that the Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights, with the jurisdiction of the court ousted until the adjudication register is final. However, where the dispute does not involve ascertainment of interests, and consent exists, the court may adjudicate.

p. 10

Legal principles established

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  • Except with the written consent of the adjudication officer, no court may entertain civil proceedings concerning an interest in land in an adjudication section until the adjudication register is final; such consent, where given by the adjudication officer, validates the institution of the suit.
  • Where the institution of a suit is prohibited by statute, time for purposes of limitation of actions does not run until the prohibition is lifted.
  • A continuing trespass gives rise to a fresh cause of action from day to day for as long as the trespass continues, so a claim founded on a continued tort is not time-barred.
  • On a first appeal, the appellate court re-evaluates the evidence as on a retrial and draws its own conclusions, while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Costs of the suit in the ELC to the respondent (trial court having awarded the plaintiff the costs of the suit)

The bench

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

JM
majority

Wrote the judgment

Wrote the leading judgment considering jurisdiction under Section 30 of the Land Adjudication Act, limitation, and the weight of evidence, and finding no merit in the appeal.

The upshot is that I find no merit in this appeal and I would dismiss it with costs to the respondent.p. 15
FT
concurring

Wrote the judgment

Separate brief concurrence agreeing fully with Mohammed, JA's reasoning and conclusion.

I have had the benefit of reading, in draft, the opinion of J. Mohammed, JA. I am in full agreement with the reasoning and the conclusion arrived at by the learned judge.p. 15
JN
concurring

Wrote the judgment

Separate brief concurrence agreeing fully with the judgment of Mohammed, JA.

I have read in draft the judgment of my learned sister, Jamila Mohammed, JA. with which I am in full agreement and there would be no utility in my adding anything thereto.p. 15
On appeal from
Environment and Land Court (ELC)
null
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 31) over an appeal from the Environment and Land Court

Relief refused

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Appellant's prayer that the appeal be allowed, the findings of liability be set aside and the respondent's suit in the ELC be dismissed

The Court found the trial court had jurisdiction, the suit was not time-barred, and the trial court properly evaluated the evidence; the appeal lacked merit.

p. 15

Appellant's prayer for costs of the appeal and of the suit in the ELC

Costs were awarded to the respondent following dismissal of the appeal.

p. 15

Costs

Appeal dismissed with costs to the respondent (including the costs of the suit as awarded by the trial court: 'the plaintiff shall have the costs of the suit').

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.

The upshot is that I find no merit in this appeal and I would dismiss it with costs to the respondent.
p. 15Disposition - appeal dismissed with costs
As Tuiyott and Joel Ngugi, JJA. are of the same opinion, it is so ordered.
p. 15Final orders - unanimous decision of the bench
In the circumstances, I find that the trial court had the requisite jurisdiction to hear and determine the suit giving rise to the instant appeal.
p. 12Jurisdiction of the ELC
By parity of reasoning, in the instant case, I find that the trial court did not err in finding that the suit file d by the respondent was not time- barred under the Limitation of Actions Act.
p. 14Limitation of actions
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
p. 14Burden of proof - Section 109, Evidence Act
where the institution of a suit is prohibited by a statute, time for the purposes of limitation of actions does not run until the prohibition is lifted
p. 10Statutory bar and limitation
The Land Adjudication Act provides an exclusive and exhaustive procedure for ascertaining and recording land rights in an adjudication section.
p. 9Exclusivity of adjudication process

Issues in the judgment

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minor

Inconsistency in the pleading/record on the parcel number claimed by the appellant: DW1's evidence and the defence refer to Plot No. 2102 while the cross-examination and portions of the record refer to 'Plot No. 2102' versus '1202' and 'Plot No 3699/37000/3714/3715/3744/2869' in the consent letter, creating ambiguity in parcel references.

minor

The judgment quotes the Muthiora passage with duplicated paragraph numbering ('53.' appears twice in the quoted extract), indicating a typographical error in the quoted text.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR)", Case Analysis (2024). Court of Appeal Civil Appeal (as arising from ELC suit; memorandum of appeal raising four grounds). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1048/eng@2024-08-16

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