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ELCAllowedAppeal from Kisumu CMC ELC No. 264 of 2018· [2020] KEELC 1404 (KLR)

Melisa Buluma v Jane Adhiambo Tambo [2020] KEELC 1404 (KLR)

Environment and Land Court
4 September 2020
MOM. A. Odeny
2,760 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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This is a first appeal to the Environment and Land Court at Kisumu (M. A. Odeny, J) against the judgment of Hon. Christopher Yalwala, Principal Magistrate, delivered on 12th March 2019 in Kisumu CMC ELC No. 264 of 2018, dismissing the appellant's suit for eviction with costs. The appellant, registered owner of Grant No. IR 59663 (LR 16600), claimed that the defunct Municipal Council of Kisumu had illegally allocated portions of her land as Plots 22SG and 24SG, allocations later nullified, and that the respondent had trespassed and constructed a perimeter wall on her land. The respondent filed a defence but gave no evidence at trial. The magistrate held that the claim was in substance a boundary dispute, which under section 18(2) of the Land Registration Act required prior determination by the Land Registrar, and dismissed the suit for want of jurisdiction and want of a surveyor's report. On appeal, the court held that the magistrate wrongly framed an unpleaded boundary issue, that the suit land was held under a grant with fixed boundaries not subject to section 18(2), and that jurisdictional objections should be raised as preliminary issues rather than after full trial. The court further held that the respondent's untested defence was mere allegation, leaving the appellant's uncontroverted evidence proving ownership and trespass. The appeal was allowed as prayed with costs to the appellant.

Key legal issues

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01

Whether the trial magistrate wrongly recharacterised a trespass/eviction claim as a boundary dispute attracting section 18(2) of the Land Registration Act

Holding

The magistrate misapplied section 18(2): the suit land was a grant with fixed boundaries and the claim as pleaded was eviction for trespass, not a boundary dispute; the court framed and determined an unpleaded issue.

Reasoning

The plaint sought eviction based on encroachment. The appellant's grant had fixed, surveyed boundaries identifiable from documents produced. Section 18(2) bars court action only where boundaries are not fixed and must first be determined by the Land Registrar. Framing a boundary issue not pleaded or raised and dismissing the suit for want of jurisdiction was reversible error; such a jurisdictional objection should have been raised as a preliminary issue.

p. 4
02

Effect of the respondent's failure to adduce evidence at trial

Holding

The defence and documents remained unproven allegations; the appellant's uncontroverted evidence proved ownership and trespass, entitling her to the eviction orders sought.

Reasoning

The respondent filed a statement of defence and documents but closed her case without testifying. Following Shaneebal Limited v County Government of Machakos and the authorities cited therein, unproved pleadings are not evidence. The appellant proved her ownership of the suit land (supported by NLC findings and action by the Commissioner of Lands reverting the land to her) and the encroachment, discharging her burden of proof.

p. 3

Legal principles established

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  • A first appellate court must reconsider the evidence, re-evaluate it and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses.
  • Issues for determination flow from the pleadings; a court cannot make pronouncements on issues not raised in the pleadings.
  • Where a defendant does not adduce evidence, the defence and documents filed remain mere allegations and the court cannot base its decision on them.
  • Land registered under the repealed Registration of Titles Act (grants) has fixed boundaries ascertainable from documents, so a trespass/eviction claim over such land is not barred by section 18(2) of the Land Registration Act.

Court orders

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  1. 1.Appeal allowed as prayed with costs to the appellant
  2. 2.Implicit setting aside of the judgment of the trial court dismissing the appellant's suit (appeal allowed 'as prayed', the prayer being to set aside the judgment and enter judgment as pleaded in the plaint)

Authorities

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Legislation

  • Land Registration ActSections 18(2) and 19(2)
  • Evidence ActSections 107 and 108
  • Registration of Titles Act (repealed)null

Cases cited (10)

  • Kenya National Highway Authority v Shalein Masood Mughai & 5 others
    [2017] eKLR
  • Dave Vs Business Machines
    1974 EA Law Reports
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    (2009) 2EA 212
  • Mwangi v Wambugu
    [1984] KLR 453
  • Abdalla Mohamed Salim & another v Omar Mahmud Shallo & another
    [2014] eKLR
  • Shaneebal Limited vs County Government of Machakos
    [2018] eKLR
  • Edward Muriga through Stanley Muriga vs Nathaniel D. Shulter
    Civil Appeal No. 23 of 1997
  • CMC Aviation Ltd vs Cruisair Ltd (No. 1)
    [1978] KLR 103; [1976-80] 1KLR 835
  • Mareco Limited v Future Limited & another
    [2017] eKLR
  • Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others
    [2014] eKLR
On appeal from
Principal Magistrate's Court, Kisumu
Kisumu CMC ELC No. 264 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court ( Memorandum of Appeal dated 28th March 2019)

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, "Melisa Buluma v Jane Adhiambo Tambo [2020] KEELC 1404 (KLR)", Case Analysis (2020). Appeal from Kisumu CMC ELC No. 264 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1404/eng@2020-09-04

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