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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 4488 (KLR)

Nyameno Mageto v Simion Mageto Nyameno [2018] KEELC 4488 (KLR)

Environment and Land Court of Kenya
16 February 2018
JMJ. M. Mutungi
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff filed suit by plaint dated 26th August 2011 seeking a declaration that a disputed parcel did not form part of Central Kitutu/Mwogeto/383, an order setting aside or quashing the ruling of the Nyanza Land Dispute Tribunal, and prohibition restraining the defendant from interfering with his enjoyment of the suit property. The defendant denied the claim, relying on prior proceedings before the Manga Land Disputes Tribunal, which decided the dispute in his favour, and the dismissal of the plaintiff's appeal to the Nyanza Provincial Appeals Committee, against which no further appeal was lodged. By consent, the parties referred the parcels to the District Land Registrar and County Surveyor, both of whom reported that boundaries were intact and that parcels 383 and 384 were separated by a 120ft road existing since adjudication. An application by the plaintiff for judgment based on the registrar's report was disallowed by Okong'o J in a ruling of 15th August 2014. Before Mutungi J the parties agreed that viva voce evidence would add little and the court should determine the matter on the pleadings, documents and reports. The court held that the plaintiff, having pursued the Tribunal process and failed to appeal under the Land Disputes Tribunals Act (Cap 303A), had abused the court process, and that in any event the plaint disclosed no cause of action, its principal prayer being unclear and incapable of implementation. The boundary reports excluded any trespass between the parcels. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Abuse of court process - failure to follow the statutory appeal route

Holding

Having participated in Tribunal and Appeals Committee proceedings and not appealed under the Act, the plaintiff could not institute a fresh suit; the suit was an abuse of process

Reasoning

The plaint showed the suit was a response to a claim decided by the Manga Land Disputes Tribunal, whose decision was upheld on appeal to the Nyanza Provincial Appeals Committee. The Land Disputes Tribunals Act (Cap 303A) provided the exclusive remedy of appeal to the High Court on a point of law within sixty days. The plaintiff did not follow that procedure, so the fresh suit could not be sustained.

p. 2
02

Whether the plaint disclosed a cause of action

Holding

The plaint did not disclose a cause of action; it failed to state the claim or identify ownership of any specific parcel

Reasoning

The plaintiff did not state what his claim against the defendant was or how it arose, and did not claim ownership of any specific parcel. Prayer (1) sought a declaration about an unidentified 'disputed' parcel, making the order incapable of being effected. A court cannot grant orders that are unclear, ambiguous or in vain.

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Effect of the land registrar's and surveyor's boundary reports

Holding

Both reports showed all boundaries were intact and the original parcels 383 and 384 were separated by a 120ft road, excluding any trespass between them

Reasoning

Pursuant to consent directions, the District Land Registrar and County Surveyor inspected the parcels. The registrar found boundaries intact and matching the ground records, noting parcels 383 and 384 had been separated by a 120ft road since adjudication. The surveyor's illustrated report confirmed the same. There could therefore be no trespass of parcel 383 onto 384 or vice versa.

p. 2

Legal principles established

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  • A decision of a Land Disputes Tribunal could only be appealed to the Provincial Appeals Committee or challenged by judicial review; Appeals Committee decisions were appealable to the High Court on a point of law only under s.8(9) of the Land Disputes Tribunals Act
  • The court cannot grant orders that are unclear, ambiguous or incapable of implementation

Court orders

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  1. 1.The plaintiff's suit commenced by plaint dated 26th August 2011 dismissed with costs to the defendant
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over a suit commenced by plaint; no specific constitutional or statutory provision invoked

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, "Nyameno Mageto v Simion Mageto Nyameno [2018] KEELC 4488 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4488/eng@2018-02-16

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