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ELCDismissedELC Appeal (Meru) - Appeal No. 25 of 2012 relates to prior ruling; judgment does not print the appeal number of this suit· [2018] KEELC 2594 (KLR)

Moses Kiriiri Muthiru v Kimathi Muthiru & 2 others [2018] KEELC 2594 (KLR)

Environment and Land Court
11 July 2018
LMLucy N. Mbugua
2,527 words in judgment
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The bottom line

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The Environment and Land Court in Meru dismissed a landowner's appeal, confirming that long-running family boundary disputes can be resolved by officials re-fixing boundaries even before title deeds are issued.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Meru against a judgment of the magistrate's court in CMCC 129 of 2011, in which the respondents (plaintiffs), brothers of the appellant, had sued over alleged interference with boundary marks between their parcels (Nos. 1970, 1186 and 1827) and the appellant's parcel No. 1969, all within Uringu I adjudication section. The plaintiffs sought an order that the boundaries be measured, determined and fixed by the DLASO and District Land Surveyor, and eviction of the appellant from encroached portions. The trial magistrate found for the plaintiffs on 29th January 2015. The appellant raised six grounds, principally that the magistrate lacked jurisdiction for want of a consent under section 8 of the Land Consolidation Act addressed to the High Court, and that title deeds had since been issued so the DLASO lacked jurisdiction. The court held the consent issue was res judicata, having been litigated and dismissed in ELC Appeal No. 25 of 2012. It further held that the Land Registration Act did not apply at trial since registration was raised for the first time on appeal and no title deeds existed when suit was filed in 2011, the land being in transition between the adjudication and registered tenure systems. Because objections under the Land Consolidation Act were concluded in 2007 and the encroachment occurred in 2010, the respondents could not have used the section 26 mechanism. The court affirmed the trial judgment with moderations: boundaries are to be fixed by the joint collaboration of the district land registrar, district land surveyor and DLASO; any encroacher is to vacate within 30 days; the appeal was dismissed with costs to the respondents in both courts.

Key legal issues

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01

Res judicata on consent

Holding

The issue of consent under section 8 of the Land Consolidation Act was res judicata because a preliminary objection on it was dismissed and the ensuing appeal (ELC Appeal No. 25 of 2012) was dismissed by Judge Njoroge on 20th February 2013

Reasoning

The appellant had raised a preliminary objection in the lower court challenging the DLASO consent. That objection was dismissed and the appellant appealed to the ELC in ELC Case No. 25 of 2012, where Njoroge J dismissed the appeal. The court therefore declined to re-open the consent question on the appeal.

p. 3
02

Applicability of the Land Registration Act

Holding

The Land Registration Act did not apply at trial because no title deeds had been issued when the suit was filed on 19.5.2011, and the registration issue was never raised before the trial court

Reasoning

The appellant raised registration for the first time on appeal, annexing a title deed showing he became registered owner of parcel 1969 on 12th January 2014. The court held the trial magistrate could not determine an issue she was unaware of, and the land was in transition from the adjudication tenure system to the registered system.

p. 4
03

Dispute resolution during the intervening period between conclusion of objections and issuance of title deeds

Holding

Where the objection period has lapsed, title deeds are not yet issued, and boundaries are interfered with after demarcation, the court may order boundaries to be measured, determined and fixed

Reasoning

DW2 confirmed objections in Uringu I were concluded in 2007 and agreed boundaries may be re-fixed if interfered with after demarcation. The respondents alleged encroachment in 2010, so they could not have pursued objections under section 26. The defendant himself admitted he would suffer no prejudice if boundaries were ascertained.

p. 3
04

Evaluation of evidence by the first appellate court

Holding

The trial magistrate properly evaluated the evidence and arrived at the correct conclusion, warranting affirmation of the judgment with moderations

Reasoning

Applying the Selle principle, the court re-evaluated the evidence of PW1, PW3, PW4 (the DLASO) and the defence witnesses. It found no plausible explanation for the appellant's aversion to boundary resolution and held the respondents genuinely desired the dispute to be resolved.

p. 4

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence tendered before the trial court, assess it and make its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses
  • An issue already litigated and determined between the parties is res judicata
  • Where objections under the Land Consolidation Act have lapsed and title deeds have not been issued, the court may order boundary re-fixing where interference after demarcation is shown

Court orders

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  1. 1.The boundaries to land parcels no. 1969, 1970, 1186 and 1827 situated in Uringu 1 adjudication section are to be measured, determined and fixed by the joint collaboration of the district land registrar, the district land surveyor and the district land adjudication and settlement officer
  2. 2.Upon execution of order (i), if the appellant is found to have encroached on any part of land parcel no. 1970, 1186 and 1827, he should within 30 days vacate the portion he has encroached on
  3. 3.The appeal is dismissed with the appellant condemned to pay the costs of the appeal as well as the costs in the lower court

Authorities

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Legislation

  • Land Consolidation Actsections 8, 26, 27, 28
  • Land Adjudication Actnot specified
  • Land Registration Actnot specified

Cases cited (2)

  • SELLE vs. ASSOCIATED MOTOR BOAT CO. LTD.
    [1965] E.A. 123
  • Peter Kimandiu versus DLASO Tigania West District and 4 others
    Nyeri Court of Appeal Civil Appeal No. 28 of 2015
On appeal from
Chief Magistrate's Court (Meru)
CMCC 129 of 2011
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

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, "Moses Kiriiri Muthiru v Kimathi Muthiru & 2 others [2018] KEELC 2594 (KLR)", Case Analysis (2018). ELC Appeal (Meru) - Appeal No. 25 of 2012 relates to prior ruling; judgment does not print the appeal number of this suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2594/eng@2018-07-11

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