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ELCPartially AllowedNkubu case no. 19 of 2010 (appeal therefrom, Environment and Land Court, Meru)· [2020] KEELC 3554 (KLR)

Joseph Mbaabu Mugambi v Loise Mwari M’miriti & 5 others [2020] KEELC 3554 (KLR)

Environment and Land Court (High Court), Meru
19 February 2020
4,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court set aside an eviction order and Kshs 400,000 damages award, ordering a fresh official boundary demarcation for disputed plots instead.

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 Meru against the judgment of the Nkubu magistrates' court delivered on 30 January 2019, which granted the 1st respondent a permanent injunction against the appellant (1st defendant), ordered his eviction and demolition of his structures on parcel Nkuene/Taita/427, and awarded her Kshs. 400,000/- general damages for trespass. The appellant raised ten grounds, principally that the trial court lacked jurisdiction over what was in substance a boundary dispute, that the magistrate ignored the expert scene-visit reports and the claims against the 2nd to 6th respondents, and that damages were unpleaded. Mbugua J held that although jurisdiction was not a ground of appeal, the court could determine it under the proviso to Order 42 rule 4; the dispute was not a pure boundary dispute for the Land Registrar, so the magistrate had jurisdiction. However, the court found the trial judgment deficient: it failed to evaluate the Surveyor's report (20.1.2012) and the Land Registrar's report (12.5.2015), which showed that the 2nd respondent's plots 434 and 435 exceeded their mutation measurements and displaced all other plots; and it ignored the issues raised against the other defendants after joinder under Order 1 rule 24. The damages award was unpleaded and hence erroneous. The appeal was allowed, the trial judgment set aside in its entirety, and the Land Registrar and Surveyor ordered to demarcate all boundaries on the ground, with parties thereafter at liberty to move to their plots, evict under sections 152E and F of the Land Act, exchange plots, or negotiate compensation. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the trial magistrate had jurisdiction over the suit

Holding

The trial magistrate had jurisdiction because the dispute was not a pure boundary dispute; it involved the fate of permanent buildings displaced on the ground.

Reasoning

Although on its face the dispute appeared to be a boundary dispute reserved to the Land Registrar under section 18(2) of the Land Registration Act, the court found a deeper problem: plots had correct measurements but wrong positions on the ground owing to the 2nd respondent's encroachment, and the area was built up with permanent buildings. The question of what happens to misplaced buildings exceeded the Land Registrar's mandate, so the magistrate's court could entertain the suit.

p. 6
02

Whether the trial court erred in ignoring the scene visit reports and the claim against the 2nd to 6th defendants

Holding

The trial magistrate erred in failing to evaluate the expert reports and in ignoring the issues raised against the other defendants after their joinder under Order 1 rule 24.

Reasoning

The reports of the Surveyor (20.1.2012) and Land Registrar (12.5.2015) established that the ground measurements matched the mutation but the 2nd respondent's plots 434 and 435 exceeded their share, displacing all other plots. The trial court, having appreciated this in the joinder ruling, completely eclipsed the issue in the final judgment. The appellate court analysed blame among the parties, finding the 2nd respondent bore the greatest blame.

p. 7
03

Whether the award of general damages was justified

Holding

The award of Kshs. 400,000/- was erroneous and unwarranted because damages were never pleaded.

Reasoning

The plaint sought injunction, eviction and demolition only. General damages were neither pleaded nor proved, and no evidence showed how the trial magistrate arrived at the figure. Since a claim must be anchored on the pleadings before proof, the award fell with the rest of the judgment.

p. 8

Legal principles established

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  • Jurisdiction is fundamental; a court without jurisdiction must stop and cannot confer jurisdiction on itself, and the issue may be raised at any stage including on appeal
  • A claim must be anchored on the pleadings before it can be proved
  • A purchaser of land must exercise due diligence to establish the root of title and the ground status of the land

Court orders

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  1. 1.The entire judgment in Nkubu case no. 19 of 2010 delivered on 30.1.2019 is set aside.
  2. 2.An order is issued for the Land Registrar with the assistance of the Surveyor to go to the ground and place the beacons or mark out the boundaries for all the plots arising out of the subdivision of NKUENE/TAITA/408 using the previous scene visit reports.
  3. 3.After the boundary marking exercise, each party/plot owner is at liberty to move to their respective portions of the land (quicquid plantatur solo solo cedit), invoke sections 152 E and F of the Land Act to evict and demolish at their own costs, negotiate an exchange/transfer of plots with the Land Registrar facilitating and land control board consent dispensed with, or negotiate compensation.
  4. 4.Any party encountering hurdles in acquisition, eviction, exchange/transfer or compensation may enforce their claim through fresh litigation, with limitation time running from the date of delivery of the judgment.
  5. 5.Each party is to bear their own costs of the suit as well as costs in the lower court.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 4
  • Civil Procedure RulesOrder 1 rule 24
  • Land Registration ActSection 18(2)
  • Land ActSections 152 E and F

Cases cited (4)

  • Selle & Another vs. Associated Motor Board Company Ltd
    [1968] EA 123
  • Owners of the Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Alvin Kamande Njenga v Gacheru
    [2016] eKLR
  • John Mburu Kiarie vs. William Kimani Njuguna & 3 Others
    Thika ELC No. 468 of 2017
On appeal from
Nkubu Magistrates' Court
Nkubu case no. 19 of 2010
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules (appeal from the trial court's judgment of 30.1.2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Mbaabu Mugambi v Loise Mwari M’miriti & 5 others [2020] KEELC 3554 (KLR)", Case Analysis (2020). Nkubu case no. 19 of 2010 (appeal therefrom, Environment and Land Court, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3554/eng@2020-02-19

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