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ELCPartially AllowedEldoret CMCC No. 6 of 2011 (Appeal therefrom)· [2018] KEELC 2113 (KLR)

Siro Leo v Julius Amboga Asava & another [2018] KEELC 2113 (KLR)

Environment and Land Court
26 July 2018
AOA. Ombwayo
3,898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a land ownership ruling because the real owner wasn't part of the case, sending it back for a full retrial.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Eldoret from the judgment of the Chief Magistrate's Court in CMCC No. 6 of 2011. The respondents, suing as administrators ad litem of the estate of Jackton Asava Akibaya, sought a permanent injunction against the appellant over parcel King'ong'o Block 21/580. The magistrate found L.R. No. 10492-17 (King'ong'o Farm) belonged to the appellant while Block 21/580 belonged to the respondents, and ordered a joint survey. The appellant appealed, contending the magistrate failed to determine the ownership issue, ignored his claim of right based on occupation since 1987, and that the court lacked jurisdiction. The court found the suit property was registered in the name of Andrew Kibe Kotut, who claimed trusteeship without supporting evidence. It held the respondents, as alleged beneficiaries, lacked capacity to sue; the trustee or registered proprietor should have brought the suit or been a party. It declined to entertain the adverse possession issue raised for the first time on appeal, noting it was neither pleaded nor supported by evidence below, and that neither party was the registered proprietor. On jurisdiction, the court held the magistrate's court properly entertained the matter, filed in January 2011 before the repeal of the Registered Land Act and Land Disputes Tribunal Act, applying section 23(3) of the Interpretation and General Provisions Act and the Chief Justice's Practice Direction No. 7. The appeal was allowed, the lower court judgment quashed, the matter remitted for retrial de novo before a different magistrate, with Andrew Kotut to be enjoined as defendant, and each party bearing its own costs.

Key legal issues

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01

Capacity to sue over land registered in the name of a trustee

Holding

The respondents, as beneficiaries of the alleged trust, lacked capacity to sue; the registered trustee (Kotut) ought to have brought the suit or been enjoined

Reasoning

The suit property was registered in the name of Andrew Kotut, registered as absolute proprietor on 13/3/1995, who claimed to be a trustee. The court found no evidence he was registered as trustee, but even if the trust existed, beneficiaries cannot sue in their own name; the title holder should sue, and nothing prevented Kotut from transferring the property to the respondents.

p. 3
02

Adverse possession claim raised on appeal

Holding

The adverse possession issue was not pleaded or supported by evidence in the lower court and could not be entertained on appeal; in any event it was inapplicable as neither party was the registered proprietor

Reasoning

The magistrate framed the adverse possession issue suo motu without deciding it. The appellate court held it could not entertain an unlitigated issue, and that possession ran against the registered proprietor, a third party. It further noted that at the time of judgment the magistrate's court lacked jurisdiction to entertain a claim based on adverse possession, requiring a High Court order under sections 37 and 38 of the Limitation of Actions Act.

p. 4
03

Jurisdiction of the Magistrate's Court after repeal of the Registered Land Act and Land Disputes Tribunal Act

Holding

The Magistrate's Court had jurisdiction as the suit was filed on 11 January 2011 when the repealed laws were in force, and pending matters continued under the Chief Justice's Practice Direction No. 7

Reasoning

The suit predated the commencement of the Environment and Land Court Act and the Land Registration Act. Section 23(3) of the Interpretation and General Provisions Act preserved pending proceedings, and the CJ's Practice Directions directed magistrates' courts to continue hearing pending and new land cases within their pecuniary jurisdiction. The appellant did not demonstrate lack of pecuniary jurisdiction.

p. 5
04

Finding on ownership of L.R. No. 10492/17

Holding

The magistrate erred in finding the appellant owned L.R. 10492/17 as that issue was not before him and no evidence supported it

Reasoning

The suit property was parcel No. 21 (King'ong'o)/580, not L.R. 10492/17, and it was not established that the two were the same. The court found the finding was made without evidence and without jurisdiction over the issue framed from the blues, warranting setting aside and a retrial with the registered proprietor enjoined.

p. 4

Legal principles established

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  • A trustee registered as proprietor, not the beneficiaries of the alleged trust, has capacity to sue to protect the trust land
  • A first appellate court cannot entertain an issue that was not pleaded and litigated before the trial court
  • Passage of time cannot confer jurisdiction; jurisdiction is either present ab-initio or absent forever
  • Under section 23(3) of the Interpretation and General Provisions Act, repeal of a written law does not affect pending legal proceedings, which may be continued as if the repealed law had not been made

Court orders

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  1. 1.The finding of the Hon. Magistrate that L.R. No. 10492-17 known as King'ong'o Farm belonged to the appellant is set aside
  2. 2.The judgment of the lower court is quashed
  3. 3.The matter is referred back to the Chief Magistrate's Court Eldoret for re-trial
  4. 4.Mr. Andrew Kotut to be made a party as a defendant
  5. 5.The matter to be heard de novo before a magistrate other than Hon. A. Alego
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1)
  • Repealed Constitution of KenyaSection 75(6)
  • Land Registration ActSection 13
  • Limitation of Actions ActSections 7, 13, 37, 38
  • Registered Land Act (repealed)Section 159
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Environment and Land Court Actcommencement provisions
  • Interpretation and General Provisions ActSection 23(3)

Cases cited (1)

  • PETER GICHUKI KINGARA VS I.E.B.C AND OTHERS
    C.A Civil Appeal No. 23 of 2013 (Nyeri)
On appeal from
Chief Magistrate's Court, Eldoret
CMCC No. 6 of 2011
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's decision; Environment and Land Court Act and Practice Direction No. 7 (9th November 2012)

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, "Siro Leo v Julius Amboga Asava & another [2018] KEELC 2113 (KLR)", Case Analysis (2018). Eldoret CMCC No. 6 of 2011 (Appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2113/eng@2018-07-26

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