Patrick Muleyi v Selina Nambuye Nabalokha & another [2021] KEELC 1671 (KLR)
The bottom line
#Kenya's Environment and Land Court in Bungoma dismissed a landowner's appeal, confirming joint ownership of a Cheptais Market plot and ruling each family must pay its own costs.
What this practically means
#Executive summary
#Key legal issues
#Raising new issues (locus standi and limitation) for the first time on appeal
The new issues were disallowed and, in any event, would have failed; the Respondents held a Limited Grant Ad Litem and the claim was one of continuing trespass
Applying Alwi A. Saggaf and related authorities, the court held the discretion to admit new points must be exercised sparingly. On locus standi, the Limited Grant Ad Litem answered the point. On limitation, the claim was premised on trespass; building on another's land is a permanent invasion constituting a continuing trespass giving a fresh cause of action each day, so the 1978 purchase date was immaterial.
Effect of failure to frame issues for determination
Failure to frame issues is an irregularity but not fatal where parties knew the real question, led evidence and the court considered it; parties also share responsibility
Relying on Norman v Overseas Motor Transport and S. N. Shah v C. M. Patel, the court held that where issues are joined on the pleadings and evidence is taken and considered, a decision will not be upset merely because issues were not framed. The trial Magistrate in any event apprehended the issues before her.
Alleged judicial bias and use of demeaning words
Ground dismissed; no demeaning words or conduct demonstrating bias were identified
The court reiterated that bare allegations of bias are insufficient; there must be reasonable grounds for inferring partiality. Counsel could not point to any specific words or conduct by the trial Magistrate evidencing bias against the Appellant.
Ownership of Plot No. 92 Cheptais Market and weight of evidence
The finding of joint ownership was upheld; the plot was divided between the Appellant (33 ft by 100 ft) and the deceased's portion (17 ft by 100 ft)
The court re-evaluated the evidence: the 1978 Markets Officer's letter, the sale agreement describing the plot sold to the deceased as No. 92A, the County Council letter of 21st November 2012 acknowledging the deceased as owner, PW3's unshaken testimony, and the Appellant's failure to avail his alleged allotment letter all supported the trial Magistrate's finding, which was the only conclusion open on the evidence.
Ambiguity in the trial court's final orders granting prayers 'partially'
The ambiguity was cured by the subsequent decree of 3rd February 2020, so the judgment was not interfered with
The court criticized the use of 'partially' in the final orders as leaving room for doubt, but held the final decree clarified the orders granted, making interference unnecessary, while emphasizing that judgments must be clear and unambiguous.
Costs of the suit
The trial court's order for half costs was set aside; each party to bear their own costs
Although costs follow the event under Section 27(1) of the Civil Procedure Act, the court may for good reason order otherwise. The Appellant had been paying rates on the co-owned plot, and the parties being family and neighbours, it was fair that each party meet their own costs.
Legal principles established
#- A first appellate court must re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
- A new point not pleaded or canvassed at trial should not be taken on appeal unless the facts, if fully investigated, would have supported it and full justice can be done
- Failure to frame issues is not fatal where the parties knew the real question between them, adduced evidence on it and the court considered it
- Continuing trespass gives rise to a fresh cause of action from day to day and cannot be barred by limitation so long as the trespass continues
- Bare allegations of judicial bias without reasonable grounds cannot sustain a ground of appeal
- A court's judgment must be clear and unambiguous, particularly where prayers are granted partially
- Costs follow the event but the court may for good reason order otherwise, including where the parties are family
Court orders
#- 1.Appeal dismissed
- 2.Judgment of the trial Magistrate upheld, the finding of joint ownership of Plot No. 92 Cheptais Market maintained (Appellant's portion 33 feet by 100 feet; deceased's portion 17 feet by 100 feet)
- 3.The trial court's order that the Appellant pay half the costs of the suit set aside
- 4.Each party to meet their own costs both in the appeal and in the court below
- On appeal from
- Subordinate Court (Principal Magistrate's Court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction under Section 78(1) of the Civil Procedure Act and Section 13(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Muleyi v Selina Nambuye Nabalokha & another [2021] KEELC 1671 (KLR)", Case Analysis (2021). Not stated in the judgment (appeal from Bungoma Chief Magistrate's Court suit over Plot No. 92 Cheptais Market). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1671/eng@2021-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.