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ELCAllowedTigania ELC No. 13 of 2017 (appeal)· [2021] KEELC 1216 (KLR)

Alois Kaburi Naituli v Muchui Kobia & 3 others [2021] KEELC 1216 (KLR)

Environment and Land Court
3 November 2021
CNC.K. NZILI
901 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that once fraud and extra parties are added to a land dispute, magistrates' courts do have jurisdiction to hear it.

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 ruling of 18th July 2019 in Tigania ELC No. 13 of 2017, in which the trial magistrate held he had no jurisdiction to entertain the appellant's suit. The appellant had sued for eviction from L.R No. 4927 Ankamia Adjudication Section pursuant to a consent issued by the District Land Adjudication Office, and later amended his plaint to join the 3rd and 4th respondents, alleging conspiracy, fake objection proceedings and fraudulent hiving off of 1.63 acres to create Parcel No. 111 in favour of the 1st respondent. The respondents' preliminary objection contended the suit arose from objection proceedings and the appellant ought to have pursued judicial review or an appeal to the Minister. On appeal, C.K. Nzili, ELC Judge, applied the Selle principles requiring reappraisal of the evidence and findings below. The court held that once the trial court allowed joinder of additional parties and the claim was broadened to include fraud, illegality and collusion, it was no longer merely an objection-proceedings matter; that allegations of fraud, impropriety and collusion fall within the court's mandate; and that the objection proceedings relied on raised contested factual issues inappropriate for a preliminary objection. The court found the appellant was not a party to the objection proceedings. Allowing the appeal with costs to the appellant, the court held the trial magistrate erred in law and in fact in finding he lacked jurisdiction to determine the suit.

Key legal issues

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01

Jurisdiction over a suit pleaded as founded on fraud arising in land adjudication proceedings

Holding

The trial magistrate erred in holding he lacked jurisdiction; the suit, having been broadened by amendment and joinder to include fraud, illegality and collusion, was properly before the magistrates' court.

Reasoning

The consent obtained from the Land Adjudication Officer was only for eviction orders against the 1st respondent. After the court allowed joinder of the 3rd and 4th respondents and the claim was amended to plead fraud, illegality and collusion, the claim was no longer an objection-proceedings matter requiring judicial review or a Minister's appeal. Fraud allegations fall within the court's mandate, and the objection proceedings relied on raised contested factual issues unsuitable for a preliminary objection.

p. 2
02

Effect of contested facts on a preliminary objection

Holding

A preliminary objection founded on contested factual matters is weakened and cannot stand.

Reasoning

The respondents' submissions attached the objection proceedings decision, but on examination those proceedings raised factual questions which were contested, particularly whether the appellant was a party to them. The appellant's uncontroverted replying affidavit asserted he was not a party to the objection proceedings, so the point of law could not be determined without resolving disputed facts, which a preliminary objection does not permit.

p. 2

Legal principles established

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  • On a first appeal the court is expected to re-hear, rehearse and reappraise the pleadings, evidence and findings of the lower court and come up with its own findings.
  • Once a trial court allows joinder of more parties and the claim is broadened to include fraud, illegality and collusion, the suit is no longer one arising purely from objection proceedings and the objection that judicial review or a Minister's appeal is the proper route fails.
  • Allegations of fraud, impropriety and collusion fall within the court's mandate and support jurisdiction.
  • A preliminary objection cannot rest on contested facts.

Court orders

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  1. 1.The appeal succeeds
  2. 2.The ruling of 18th July 2019 finding lack of jurisdiction is overturned (the trial magistrate held in error that he lacked jurisdiction to determine the suit)
  3. 3.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Selle –vs- Associated Motor Boat Co. Ltd & Others
    [1968] E.A 123
  • Narendra T/A Sanghani & Sons –vs- P.N. Mashru Ltd
    [2018] eKLR
  • Malindi High Court matter (2016)
On appeal from
Tigania Law Courts (Magistrates' Court)
Tigania ELC No. 13 of 2017
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC Act (court as first appellate court re-appraising the subordinate court's decision)

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, "Alois Kaburi Naituli v Muchui Kobia & 3 others [2021] KEELC 1216 (KLR)", Case Analysis (2021). Tigania ELC No. 13 of 2017 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1216/eng@2021-11-04

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