Catherine Bartai & another v Rosaline Sigai & another [2018] KEELC 1820 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the issue of adverse possession was introduced on appeal
Adverse possession was neither pleaded, nor raised in evidence or submissions before the lower court, and was raised for the first time on appeal; the appellate court should not entertain it.
The respondent's claim was for a declaration of ownership and permanent injunction; the defence was based on purchase and occupation. Adverse possession was never pleaded before the magistrate. Relying on George Owen Nandy v Ruth Watiri Kibe and North Staffordshire Railway v Edge, a new point of law cannot be taken for the first time on appeal because the lower court has not had the opportunity to consider and decide it.
Whether adverse possession was proved anyway
Adverse possession was not proved; possession with the plaintiff's knowledge for over 12 years without permission was not demonstrated.
The court examined the evidence and found nothing demonstrating that the defendants entered the suit property without permission and remained in open, continuous possession for the statutory period. The occupation was traceable to a sale by the plaintiff to Songol, and the plaintiff had offered the defendants the 2 acres actually sold.
Whether adverse possession can be instituted in the Lower Court
No. The Magistrate's Court lacks jurisdiction to entertain claims based on adverse possession; such claims lie in the Environment and Land Court under section 38 of the Limitation of Actions Act by originating summons.
Sections 37 and 38 of the Limitation of Actions Act and the civil procedure rules require an application under section 38 to be made to the High Court (now the Environment and Land Court) by originating summons supported by an affidavit with a certified extract of title. Therefore even if adverse possession had been pleaded, the magistrate had no jurisdiction over it.
Whether the suit in the Lower Court was a nullity for lack of letters of administration
The issue does not arise because there was no counterclaim by the defendants; the action was in personam against trespassers.
The defendants were sued as trespassers. An action based on trespass is against the trespasser personally and does not survive the death of the trespasser. Since the defendants filed no counterclaim requiring administration of any estate, the absence of letters of administration did not invalidate the suit.
The effect of the decision of the Kosirai Land Disputes Tribunal
The Tribunal's award was never adopted by the Magistrates Court and therefore had no legal effect.
DW2 confirmed that the Tribunal proceedings had not been adopted by the court. Adoption is what validates a Tribunal award; without it the proceedings and award confer no rights and nothing turns on them.
Legal principles established
#- A litigant is precluded from taking a completely new point of law for the first time on appeal
- A claim for adverse possession to registered land must be brought under section 38 of the Limitation of Actions Act by originating summons, a jurisdiction vested in the Environment and Land Court and not the Magistrate's Court
- A person cannot transfer more land than he owns; nemo dat quod non habet
- An unadopted Land Disputes Tribunal award has no legal effect
Court orders
#- 1.The appeal is dismissed with costs
- 2.The judgment of the lower court declaring the respondent owner of the suit property save for 2 acres sold to John Kipyego Songol and in turn sold to the defendant's father and husband stands
- On appeal from
- Principal Magistrates Court, Kapsabet
- Civil Suit filed 30th January 2006 (Kapsabet LDT No. 2 of 2006 referred)
- Jurisdiction invoked
- Appeal from the Principal Magistrates Court under the applicable appeal provisions (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Bartai & another v Rosaline Sigai & another [2018] KEELC 1820 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1820/eng@2018-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.