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ELCPartially AllowedKangema SRM Civil Case No. 48 of 2011 (Appeal)· [2018] KEELC 4215 (KLR)

Julius Kimani v Kamau Kinja [2018] KEELC 4215 (KLR)

High Court of Kenya
8 March 2018
2,426 words in judgment
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The bottom line

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Kenya's High Court ruled you can't be ordered to cut trees on land you don't own; claimants must sue the deceased landowner's estate after obtaining a grant of administration.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Murang'a against the judgment of Mrs. A. Too, acting Senior Resident Magistrate, in Kangema SRM Civil Case No. 48 of 2011, delivered on 25/9/2013. The Respondent had sued the Appellant claiming that twelve gravelia trees planted in 1980 along the common boundary between their parcels encroached on his land and overhung his house; the trial Court compelled the Appellant to fell the remaining ten trees and awarded costs to the Respondent. On appeal, the Appellant argued that the trees stand on parcel LOC.19/NYAKIANGA/1897, which belonged to his late father Mwangi Wagana (died 2004), whose estate has no administrator, and that the Appellant owns only parcel 1898, which does not border the Respondent's land. Applying Selle v Associated Motor Boat Co., the Court re-evaluated the evidence. Relying on Section 26 of the Land Registration Act, it held that the certificates of title proved the deceased father was the legal owner of parcel 1897, that a stranger cannot be compelled to cut trees on another person's land, and that the trial Magistrate erred in failing to determine ownership before ordering the trees felled. The Court observed that the Respondent's proper course was to take out a grant of administration ad litem and sue a representative of the estate. The boundary dispute issue was not considered, having not been pleaded and tried in the lower Court. The appeal was allowed, the trial judgment set aside in its entirety, and each party ordered to bear their own costs at both levels.

Key legal issues

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01

On which parcel of land were the gravelia trees planted?

Holding

The trees were planted on parcel LOC.19/NYAKIANGA/1897, as adduced in evidence and confirmed by the trial Court.

Reasoning

The plaint alleged the trees stood on a common boundary between parcels 1694 and 1897. Evidence before the trial Court established that the trees were planted on parcel 1897. The Court of scene visit also observed all 12 trees were planted on the same line, confirming they lay on parcel 1897 rather than on the Appellant's own parcel 1898.

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02

Who owns parcel LOC.19/NYAKIANGA/1897 on which the trees are planted?

Holding

The parcel belongs to the Appellant's deceased father, Mwangi Wagana, whose estate has not undergone succession; the Appellant is not the legal owner.

Reasoning

Certificates of title produced at trial showed the parcel was registered in the name of the Appellant's late father, who died in 2004, with no administrator appointed. Under Section 26 of the Land Registration Act, a certificate of title is prima facie proof of ownership. The trial Court erred in ignoring this evidence and compelling the Appellant, who does not own the land, to fell the trees. The correct course was to sue a representative of the estate under a grant ad litem.

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Legal principles established

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  • A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner
  • A stranger who is not the owner of land cannot be compelled to cut trees planted on that land; the proper course is to sue a representative of the estate after taking out a grant of administration ad litem

Court orders

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  1. 1.The judgment of the trial Magistrate delivered on 25/9/2013 is set aside in its entirety
  2. 2.Each party to bear their own costs both at the trial Court and in the present case
  3. 3.The appeal is allowed

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Land Registration Act, No. 6 of 2012Section 26

Cases cited (2)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Kangema Senior Resident Magistrate's Court
Civil Case No. 48 of 2011
Jurisdiction invoked
First appeal from the Senior Resident Magistrate's Court to the High Court

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, "Julius Kimani v Kamau Kinja [2018] KEELC 4215 (KLR)", Case Analysis (2018). Kangema SRM Civil Case No. 48 of 2011 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4215/eng@2018-03-08

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