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ELCDismissedKisii CMCC No. 209 of 2010 (appeal)· [2017] KEELC 1594 (KLR)

Samwel Nyamongo Auma v Oroko Bosire [2017] KEELC 1594 (KLR)

Environment and Land Court
29 September 2017
3,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that you cannot validly buy a share of jointly owned land in Kenya without the other co-owners' consent.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisii against the judgment of Hon. K. Sambu, PM in Kisii CMCC No. 209 of 2010, in which the trial magistrate declared the respondent, Oroko Bosire, the legal and beneficial owner of Plot No. 12 Bumburia Market, granted a permanent injunction against the appellant, ordered his eviction and awarded costs to the respondent. The appellant, the original defendant, contended he had purchased the plot (or a portion of it, later designated Plot No. 12A by Nyamira County) from Esther Kemunto Bisieri in 1997 and raised eight grounds challenging the trial court's findings on evidence and burden of proof, and for the first time on appeal, the trial court's jurisdiction. The court re-evaluated the evidence as required of a first appellate court and found the trial magistrate's findings well supported: the Kisii County Government's records custodian (PW3) confirmed the plot remained registered in the names of the three original allottees and had never been transferred; there was no evidence of subdivision creating Plot 12A or of distinct saleable portions; and a co-owner could not validly sell her share without the consent of the other co-owners. On jurisdiction, the court held that under Section 30(1) of the Environment and Land Court Act, 2011 and the Chief Justice's Practice Direction 8, magistrates' courts retained jurisdiction over pending and new land cases within their pecuniary jurisdiction. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate's findings on ownership of Plot No. 12 Bumburia Market were supported by the evidence

Holding

The findings were supported by the evidence, including the certified muster roll and plot card produced by the Kisii County Government records custodian, and the appellate court would not interfere

Reasoning

PW3, a Kisii County Government administrative officer, confirmed from the council's records that the plot was owned by the three original allottees and had never been transferred. There was no evidence that the plot was subdivided to create Plot 12A, and the appellant's claim of a distinct 25ft by 100ft portion was contradicted by the evidence that the entire plot measured only 25ft by 100ft. The trial magistrate was therefore entitled to its findings.

p. 5
02

Whether Esther Kemunto Bisieri could validly sell her share of the jointly owned plot

Holding

She could not; a co-owner cannot deal with jointly owned property without the sanction and/or approval of the other co-owners

Reasoning

The three co-owners were joint owners or tenants in common of undivided shares. There was no evidence of authority from the co-owners to sell, no evidence of distinct portions capable of separate sale, and no evidence that Kemunto Bisieri constructed any buildings. The council required transfers to be sanctioned by minute with all co-owners, and no such sanction existed.

p. 5
03

Whether the trial magistrate had jurisdiction over the land dispute

Holding

The magistrate's court had jurisdiction; proceedings pending before the establishment of the Environment and Land Court continued before the courts where instituted, and Practice Direction 8 preserved magistrates' courts' jurisdiction over land cases within their pecuniary jurisdiction

Reasoning

Section 30(1) of the Environment and Land Court Act, 2011 provided that pending land proceedings shall continue to be heard by the same court until the Environment and Land Court comes into operation. The Chief Justice issued Practice Directions (Gazette Notice No. 5178 of 28th July 2014) confirming that magistrates' courts continue hearing pending or new land cases within their pecuniary jurisdiction. The suit was commenced before the ELC was established.

p. 6

Legal principles established

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  • An appellate court of first instance must re-evaluate the evidence adduced before the lower court and will not interfere with findings of fact unless the trial court was clearly wrong or misdirected itself
  • A co-owner of joint property cannot sell or transfer the property or their share without the sanction and/or consent of the other co-owners
  • Land proceedings pending before magistrates' courts before the establishment of the Environment and Land Court continued before those courts, and magistrates' courts retain jurisdiction over pending or new land cases within their pecuniary jurisdiction per the Chief Justice's Practice Direction 8

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment and decree of the trial magistrate (declaring the respondent owner of Plot No. 12 Bumburia Market, permanent injunction against the appellant, eviction and costs) remain undisturbed

Authorities

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Legislation

  • Land ActSection 50
  • Land Registration ActSection 101
  • Environment and Land Court ActSection 30(1)
  • Environment and Land Court ActSections 24 and 30(1) and (2)

Cases cited (2)

  • Mbogo & Another –vs- Shah
    [1968] E.A 93
  • United India Insurance Co. Ltd –vs- East African Underwriters [Kenya] Ltd
    [1985] E.A 898
On appeal from
Kisii Chief Magistrate's Court (Principal Magistrate Hon. K. Sambu, PM)
Kisii CMCC No. 209 of 2010
Jurisdiction invoked
First appeal under the Environment and Land Court Act; jurisdiction of the trial magistrate preserved by Section 30(1) of the Environment and Land Court Act, 2011 and Practice Direction 8 (Gazette Notice No. 5178 of 28th July 2014)

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, "Samwel Nyamongo Auma v Oroko Bosire [2017] KEELC 1594 (KLR)", Case Analysis (2017). Kisii CMCC No. 209 of 2010 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1594/eng@2017-09-29

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