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ELCDismissedAppeal from Kajiado PMCC No. 93 of 2011· [2017] KEELC 1835 (KLR)

Acumen Properties (K) Ltd v Chairperson (sued on behalf of Mwerere Women Group) [2017] KEELC 1835 (KLR)

High Court of Kenya
21 July 2017
SOS. Okong'o
4,014 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan buyer who only holds a title document lost a land dispute because the other party was allocated and occupied the plot years earlier.

What this practically means

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Executive summary

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This is a first appeal to the High Court against the judgment of Hon. S.O. Temu SRM in Kajiado PMCC No. 93 of 2011, in which the lower court dismissed the appellant's claim for a permanent injunction and general damages for trespass over Plot No. 507/Business-Ole Kasasi Trading Centre and allowed the respondent's counterclaim over Plot No. 470/Residential-Ole Kasasi Trading Center. The appellant, which claimed to have purchased Plot No. 507 in 2009 from the administrator of the estate of Zachariah Wainaina Njoroge, argued twenty-two grounds of appeal, substantially attacking the magistrate's finding that the two plots were one and the same and its application of the first-in-time principle. The respondent's Chairlady, appearing in person, maintained that her members had been allocated and occupied the land since the 1990s. On appeal, the court reiterated the duty of a first appellate court to re-evaluate the evidence, and condensed the twenty-two grounds into two: whether the appellant proved its case and whether the respondent proved its counterclaim. The court held that Plot No. 507 and Plot No. 470 were one and the same parcel of land with two reference numbers, that the appellant failed to prove its root of title since there was no evidence of how the deceased acquired the property, and that the respondent, allocated the land in 1994 and in occupation before the 2009 sale, acquired it first in time. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether Plot No. 507 and Plot No. 470 are one and the same parcel of land

Holding

The court agreed with the lower court that the two numbers referred to one parcel on the ground

Reasoning

After reviewing the record, the court found the dispute was over one parcel with two different reference numbers. No evidence located Plot No. 470 separately, and neither the appellant nor the County Council could point out its physical location.

p. 5
02

Whether the appellant proved ownership of the suit property

Holding

The appellant failed to discharge the burden of proving its root of title

Reasoning

There was no evidence of how the deceased acquired the suit property, no letter of allotment, and no evidence of the deceased paying rates or rent. The appellant knew of the ownership dispute and had a duty to show the deceased had good title, which it failed to do.

p. 6
03

Whether the respondent proved its counter-claim

Holding

The respondent proved prior allocation, payment and occupation, defeating the appellant's claim

Reasoning

The respondent was allocated the plot on 28th June 1994, paid for the allotment in 1995 and paid annual rent to 2010, before the purported 2009 sale to the appellant. The first-in-time principle applied.

p. 6

Legal principles established

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  • A first appellate court must re-evaluate the evidence on record and draw its own conclusions, while bearing in mind it did not see or hear the witnesses
  • An appellate court will not interfere with findings of fact unless they were not based on evidence, on misapprehension of the evidence, or on wrong principles
  • Where a registered proprietor's root of title is challenged, it is not sufficient to dangle the instrument of title; the proprietor must go beyond the instrument
  • Where two titles are issued over the same parcel by mistake, the first in time prevails

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Evidence ActSection 112

Cases cited (7)

  • Verani t/a Kisumu Beach Resort –vs- Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269
  • Peter vs. Sunday Post Ltd.
    [1958] E.A 424
  • Makube vs. Nyamuro
    [1983] KLR 403
  • George Mbiti Kiebia & Another vs. Isaya Theuri M'lintari & Another
    (2014) eKLR
  • Gitwany Investment Limited vs. Tajmal Limited & 2 others
    NRB HCCC 1114 of 2002 (2006) eKLR
  • Wreck Motors Enterprises vs Commissioner of Lands
    C.A. No. 71/1997 (unreported)
  • Faraj Maharus vs J.B. Martin Glass Industries and 3 others
    C.A. 130/2003 (unreported)
On appeal from
Principal Magistrate's Court, Kajiado
PMCC No. 93 of 2011
Jurisdiction invoked
First appeal from the magistrate's court (duty of first appellate court to re-evaluate evidence)

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, "Acumen Properties (K) Ltd v Chairperson (sued on behalf of Mwerere Women Group) [2017] KEELC 1835 (KLR)", Case Analysis (2017). Appeal from Kajiado PMCC No. 93 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1835/eng@2017-07-21

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