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ELCDismissedAppeal from Milimani CMCC No. 12559 of 2005· [2018] KEELC 4844 (KLR)

Mathew Ndau Kiambati v James Gichuki Magondu & another [2018] KEELC 4844 (KLR)

Environment and Land Court
19 January 2018
3,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld an injunction protecting a Ruai plot buyer's possession, confirming fenced occupation can decide land disputes.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against a decision of Senior Resident Magistrate Hon. P. Nditika delivered on 14th June 2011 in Milimani CMCC No. 12559 of 2005, in which a permanent injunction had issued restraining the Appellant and the 2nd Respondent (Embakasi Ranching Company Limited) from trespassing on or dealing with Plots 124B, 125B, 126B and 127B at Ruai, Nairobi. The 1st Respondent had sued claiming he purchased four plots from the 2nd Respondent in 1993 and was allocated the suit properties as bonus plots, took possession and fenced them, until the Appellant in June 2005 destroyed part of the fence and threatened to pull down the entire fence. The defence was that the Appellant owned different plots (MA 156, MA 157, 156B and 157B) which he contended were the same as the suit properties on the ground. Justice S. Okong’o, on the Appellant’s fourteen grounds of appeal argued by written submissions, restated the duty of a first appellate court to re-evaluate evidence, and the principle against interfering with fact findings unsupported by evidence or reached on wrong principles. The court found the 2nd Respondent’s surveyor (DW2) unhelpful, noted the 2nd Respondent’s own director had affirmed distinct locations, and held that where titles are informal the location of parcels could be determined on the basis of possession. The evidence of fencing, PW2’s five years’ use, and the marshy character of the Appellant’s allocated land confirmed the trial court’s findings. Gitwany Investments, cited by the Appellant, was distinguished as a double-allocation case. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Duty of the first appellate court

Holding

The court re-evaluated the evidence and reached its own conclusions while allowing for the absence of demeanour evidence

Reasoning

The court cited established authorities on the duty of a first appellate court to reconsider the evidence afresh, but to caution itself against interfering with fact findings unless they were unsupported by evidence, based on misapprehension of the evidence, or reached on wrong principles. Applying that standard, the court found no basis to fault the trial court’s findings.

p. 3
02

Location of the suit properties versus the Appellant’s properties

Holding

The court found on the evidence of possession, fencing, and the marshy nature of the Appellant’s allocated land, that the two sets of plots were distinct

Reasoning

The 1st Respondent had fenced the properties; the Appellant’s handwritten response to a demand letter referred to removing fences, showing a fence existed; PW2 used the land from 2000 without objection from the Appellant; and the exhibits showed the Appellant was allocated marshy ('MA') land whereas he claimed quarry plots. The court held DW2’s evidence unhelpful and distinguished Gitwany Investments as a double-allocation case.

p. 4
03

Burden and standard of proof

Holding

The 1st Respondent discharged the burden of proving ownership and possession on a balance of probabilities

Reasoning

The court accepted the Appellant’s submission that the burden lay on the 1st Respondent, but found the burden discharged. It cited Denning J. in Miller v Minister of Pensions on the meaning of proof on a balance of probabilities, noting that where evidence is equally unconvincing the party bearing the burden loses — but here the 1st Respondent’s evidence was accepted.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses
  • An appellate court will not ordinarily interfere with findings of fact unless they were not based on evidence, on a misapprehension of the evidence, or where the court acted on wrong principles
  • In view of informal titles, a court was entitled to determine the location of parcels on the basis of possession

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st Respondent
  2. 2.The decision of the lower court (permanent injunction restraining the Appellant and 2nd Respondent from trespassing on or dealing with Plots 124B, 125B, 126B and 127B at Ruai) is upheld
On appeal from
Chief Magistrate’s Court, Milimani
CMCC No. 12559 of 2005
Jurisdiction invoked
First appellate jurisdiction over the Senior Resident Magistrate’s decision in a land dispute

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, "Mathew Ndau Kiambati v James Gichuki Magondu & another [2018] KEELC 4844 (KLR)", Case Analysis (2018). Appeal from Milimani CMCC No. 12559 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4844/eng@2018-01-19

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