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ELCDismissedGithongo RMCC No. 35 of 2014 (Appeal)· [2019] KEELC 3487 (KLR)

Kenneth Mwenda v Julius Rimberia & another [2019] KEELC 3487 (KLR)

Environment and Land Court
7 January 2019
LMLucy N. Mbugua
1,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Winning a default judgment in a Kenyan land case doesn't end the matter—you must still prove you own the land before claiming damages.

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 Meru against the judgment of C.A Mayamba S.R.M in Githongo RMCC No. 35 of 2014, delivered on 24 April 2015, by which the appellant's claim was dismissed. The appellant, grandson of the 1st respondent, had sued claiming that the 1st respondent had given him and his deceased mother land parcel L.R Nkuene/Ukuu/935, on which he extensively developed property. He alleged the 1st respondent fraudulently transferred the land to the 2nd respondent, and that a consent judgment in Githongo RMCC No. 10 of 2014 between the two respondents led to his eviction and destruction of property valued at Shs.719,440. He sought special and general damages. The suit proceeded as an undefended claim, but the trial magistrate dismissed it. On appeal, the appellant argued that there being a judgment on liability, the magistrate's role was limited to assessing damages under Order 10 rule 6 of the Civil Procedure Rules, relying on Mukangu vs Mbui. The court, applying Selle vs Associated Motor Boat Co. on the duty of a first appellate court, framed one issue: whether the magistrate's duty was limited to assessment of damages in view of the interlocutory judgment. The court held that pecuniary damages must be specifically pleaded and proved, that the appellant's case was anchored on fraud rather than overriding interests, and that the maxim quic quid plantatur solo, solo cedit required the appellant to first establish ownership of the land. The magistrate was therefore right to determine ownership before assessing damages, and Mukangu vs Mbui was distinguishable. The appeal was found unmerited and dismissed with costs to the respondents.

Key legal issues

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01

Whether interlocutory judgment under Order 10 rule 6 confined the trial court to assessment of damages

Holding

No. The interlocutory judgment did not confine the magistrate to assessing damages; the appellant still had to formally prove ownership of the land to establish the cause of action.

Reasoning

Order 10 rule 6 applies to claims for pecuniary damages or detention of goods where a defendant fails to appear. Pecuniary damages are quantifiable losses that must be specifically pleaded and proved. A claim to damages for destruction of developments on land depends on establishing title or a cause of action in the land. The maxim quic quid plantatur solo, solo cedit means whatever is affixed to the soil belongs to the soil, so ownership had to be determined first. Land matters differ from running down cases.

p. 2
02

Whether the trial magistrate erred in dealing with the issue of ownership of the land

Holding

No. The magistrate was right to deal with ownership first, before assessing damages, since ownership underpinned the claim.

Reasoning

The appellant complained the magistrate dealt with extraneous matters instead of assessing damages. The court found the magistrate had dealt with the ownership issue in depth, citing section 27 of the Registered Lands Act which accorded absolute ownership to a registered owner. Because the claim for damages rested on developments on the land, ownership was a prerequisite and it was proper to determine it first.

p. 2

Legal principles established

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  • On a first appeal the court is enjoined to analyse and re-assess evidence afresh and reach its own conclusions, bearing in mind it neither saw nor heard the witnesses testify
  • A land matter cannot be equated to matters like running down cases where liability can be dealt with via Order 10 rule 6; even after interlocutory judgment a plaintiff must formally prove ownership of the land
  • Under the maxim quic quid plantatur solo, solo cedit, whatever is affixed to the soil belongs to the soil

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 rule 6
  • Registered Lands Actsection 27

Cases cited (4)

  • Mukangu vs Mbui
  • Selle vs Associated Motor Boat Co.
    (1968) E.A 123
  • Patrick Murime Gitau and 2 others vs Ngethe Gathuku & 4 others
    Civil Case No. 4259 of 1989
  • Gachira vs Gachira
    Civil Appeal No. 325 of 2003
On appeal from
Senior Resident Magistrate's Court, Githongo
RMCC No. 35 of 2014
Jurisdiction invoked
First appeal to the Environment and Land Court against the decision of the Senior Resident Magistrate's 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, "Kenneth Mwenda v Julius Rimberia & another [2019] KEELC 3487 (KLR)", Case Analysis (2019). Githongo RMCC No. 35 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3487/eng@2019-01-07

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