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ELCDismissedLand Case No 9 of 2012 (originally Kakamega High Court Civil Suit No 42 of 2009)· [2019] KEELC 3418 (KLR)

Charles Gordon Ndiwa v Hudson Kotet Ndiwa [2019] KEELC 3418 (KLR)

Environment and Land Court
9 May 2019
BOBoaz N. Olao
2,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost a trespass suit because an official survey showed the neighbour's home was on his own parcel, not the plaintiff's land.

What this practically means

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Executive summary

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This first-instance decision of the Environment and Land Court at Bungoma (Boaz N. Olao J) resolved a boundary and trespass dispute between brothers over land parcel ELGON/CHEMOGE/297, originally filed in Kakamega as Civil Suit No 42 of 2009 and transferred in 2012. The plaintiff, registered proprietor of parcel 297 since 2005 following succession proceedings, sought eviction of the defendant, a permanent injunction, compensation and costs, alleging the defendant trespassed and built four houses on the suit land. The defendant denied trespass, asserting his home stands on his own parcel ELGON/CHEMOGE/298, and pleaded res judicata based on an earlier dispute determined by a Land Disputes Tribunal and adopted as a decree in Kimilili SRM Land Case No 7 of 2006. After hearing the parties, Omollo J had ordered a site visit by the District Land Registrar and Surveyor; the Bungoma County Surveyor's report of 13 October 2015 (filed 15 February 2016) was admitted by consent and found the defendant's home on parcel 298. The court held the res judicata plea unsustainable: the decree did not identify the land in dispute, and a Land Disputes Tribunal had no jurisdiction over ownership of registered land, so its decision could not operate as res judicata. On the merits, the plaintiff failed to discharge the burden of proving trespass. The court also found the plaintiff had doctored a copy of the surveyor's report by altering parcel 298 to read 297. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Res judicata based on the Kimilili Land Disputes Tribunal award adopted as a decree

Holding

The plea fails: the decree did not identify the land in dispute, and the Tribunal had no jurisdiction over ownership of registered land

Reasoning

The defendant pleaded that the Kimilili matter determined the dispute. The decree from Kimilili SRM Land Case No 7 of 2006 does not identify the suit land, so the identity of issues is unproved. Further, under the repealed Land Disputes Tribunal Act (Cap 303A), Tribunals had no jurisdiction over ownership of registered land, and a judgment by a non-competent forum cannot found res judicata.

p. 3
02

Whether the defendant trespassed on the suit land

Holding

No. The County Surveyor's report, admitted by consent, shows the defendant's home is on parcel ELGON/CHEMOGE/298

Reasoning

The plaintiff bore the burden under Sections 107(1) and 109 of the Evidence Act to prove trespass. The surveyor's unaltered report placed the defendant's home on his own parcel 298. The court also found the plaintiff had doctored a copy of the report by altering 298 to read 297, with a signature clearly different from the surveyor's.

p. 3

Legal principles established

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  • A Land Disputes Tribunal had no jurisdiction to determine disputes involving ownership of registered land, and a decision by a forum lacking jurisdiction cannot operate as res judicata
  • The party pleading res judicata must lead cogent evidence that the issues in the former suit are the same as those in the subsequent suit, leaving no room for conjecture
  • The burden of proving trespass lies on the party asserting it, and mere allegation without evidence such as a surveyor's report is insufficient

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Evidence ActSection 107(1)
  • Evidence ActSection 109
  • Land Disputes Tribunal Act (repealed)Chapter 303A Laws of Kenya

Cases cited (3)

  • KARIA .V. ATTORNEY GENERAL
    2005 I E.A 83
  • JOTHAM AMUNAVI .V. THE CHAIRMAN SABATIA LAND DISPUTES TRIBUNAL & ANOTHER
    C.A CIVIL APPEAL NO 256 OF 2002
  • M. MUCHERO .V. PATRICK MURIUKI NJERU AND OTHERS
    2015 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a boundary/trespass dispute concerning title to land (transferred from Kakamega High Court by Chitembwe J on 23rd May 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, "Charles Gordon Ndiwa v Hudson Kotet Ndiwa [2019] KEELC 3418 (KLR)", Case Analysis (2019). Land Case No 9 of 2012 (originally Kakamega High Court Civil Suit No 42 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3418/eng@2019-05-09

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