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ELCDismissedEnvironment & Land Case 51 of 2018· [2020] KEELC 3994 (KLR)

Patrick v Kamwiko & another (Environment & Land Case 51 of 2018) [2020] KEELC 3994 (KLR)

Environment and Land Court
23 September 2020
LMLucy N. Mbugua
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you buy land in Kenya before it is formally adjudicated and registered, your purchase may be worthless if the seller had no provable rights.

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 a decision of 13/11/2018 in which the trial magistrate dismissed the plaintiff's claim and allowed the defendants' counterclaim over an unsurveyed, unadjudicated half-acre plot at Kandebene Market bordering the Isiolo-Muriri Road. The appellant claimed he bought the plot in 2007 from the late Samuel Maara Lichoro for Kshs. 12,000/- under an agreement witnessed by the assistant chief, and sought a declaration of ownership, vacant possession and a permanent injunction. The respondents, in occupation since the 1980s/1990s, counterclaimed for declaration of ownership and an injunction. The appeal, canvassed by written submissions, raised three grounds: that the magistrate disregarded the appellant's evidence, failed to consider that the land was under Meru Society (customary) tenure in 1986, and misapplied the standard of proof. The court, guided by Selle v Associated Motor Board Co Ltd, re-evaluated the evidence. It held that the land was under customary tenure when the alleged sale occurred, that adjudication had not taken place, and that the appellant led no evidence of how the seller's rights were defined in the customary system or of clan involvement in the sale; the nemo dat maxim therefore defeated his claim. The 1st respondent was registered as owner of plot no. 3220 Ngaremara Adjudication Scheme on 13.4.2018, and the appellant's allegations of fraud were unproved and not pursued through the statutory adjudication dispute mechanisms. The court also noted the appellant had used an ex-parte court order in November 2012 to attempt eviction before the application was dismissed after inter-partes hearing. The appeal was dismissed with costs to the respondents. The judgment was delivered electronically under the COVID-19 practice directions, with parties deemed to have waived compliance with Order 21 rule 1.

Key legal issues

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01

Who is the rightful proprietor of the Suit Land

Holding

The 1st respondent, registered as owner of plot no. 3220 Ngaremara Adjudication Scheme on 13.4.2018, is the rightful proprietor; the appellant's claim failed

Reasoning

The land was un-surveyed and unadjudicated when the appellant purportedly bought it. Adjudication ascertains rights under customary tenure, and the appellant led no evidence of how Samuel Maara's rights were defined in the customary system, nor of clan involvement in the sale. The nemo dat maxim applied, and the subsequent registration in the 1st respondent's name was unchallenged through statutory mechanisms.

p. 3
02

Whether the appellant's alleged fraud in the adjudication process availed him

Holding

Allegations of fraud in the registration were not established or pursued through the proper adjudication dispute mechanisms

Reasoning

The appellant alleged that the respondents conspired with adjudication officers to fast-track issuance of title, but produced no proof and did not lodge an objection case as provided under the adjudication statutes. The court treated the registration of the 1st respondent as unchallenged and dispositive of ownership.

p. 3

Legal principles established

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  • A first appellate court must evaluate, assess and analyze the evidence on record and make its own determination, bearing in mind it did not hear the witnesses
  • No one can transfer a better title than he has; a vendor without definable rights in unadjudicated customary land cannot pass title
  • A party aggrieved by an adjudication registration must challenge it through the dispute resolution mechanisms under the adjudication statutes, such as lodging an objection

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 61
  • Constitution of KenyaArticle 63
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (4)

  • Selle & Another vs. Associated Motor Board Company Ltd
    [1968] EA 123
  • Merit Development Limited v Lenana Investment Limited & 2 others
    [2018] eKLR
  • Aggrey Khajira Indeche v Jonah Andanje Muchilimani
    [2018] eKLR
  • Reuben Mwongela M'Itelekwa (Suing as the legal representative of the estate of M'Itelekwa M'Mucheke vs. Paul Kigea Nabea
    ELC Meru Petition 6 of 2017
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision in a land dispute (Environment and Land 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, "Patrick v Kamwiko & another (Environment & Land Case 51 of 2018) [2020] KEELC 3994 (KLR)", Case Analysis (2020). Environment & Land Case 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3994/eng@2020-09-23

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