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ELCDismissedCMCC No. 149 of 2013 (Appeal)· [2021] KEELC 2353 (KLR)

Joseph M’Impwi M’Mauta v Ruth Nkirote Gitonga & another [2021] KEELC 2353 (KLR)

Environment and Land Court
28 July 2021
2,700 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a Ksh. 120,000 award for destroyed crops, confirming such claims don't require adjudication officer consent.

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 Garissa from the judgment of Hon. G.N. Wakahiu, Chief Magistrate, Maua, in CMCC No. 149 of 2013 delivered on 27th December 2018. The Respondents, owners in common of Land Parcel No. 9351 Upper Athiru Gaiti 'C' Adjudication Section, had sued the Appellant for unlawful entry and destruction of crops and obtained special damages of Ksh. 120,000. The Appellant raised five grounds of appeal, contending that the Respondents had not proved their case or specifically proved damages, and, for the first time in submissions, that the trial court lacked jurisdiction under Section 30(1) of the Land Adjudication Act because the adjudication register was not final. The court first held that although parties are bound by pleadings, a jurisdictional objection is so fundamental it may be raised even for the first time on appeal, and proceeded to determine it. It found that while Section 30(1) sets a mandatory consent requirement for proceedings concerning interests in land in adjudication sections, the claim here was for damages for destruction of crops, not determination of a registrable interest in land, so consent was unnecessary and the trial court had jurisdiction. On the merits, the evidence of PW3 and the 1st Respondent that the Appellant destroyed the crops was uncontroverted, and the Ward's Agricultural Officer's report specifically proved the Ksh. 120,000 claimed. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a new jurisdictional ground not in the memorandum of appeal can be entertained

Holding

Yes - questions of jurisdiction are so fundamental they may be raised at any stage, even for the first time on appeal

Reasoning

While parties are generally bound by their pleadings, appellate courts permit new matters in limited circumstances, one being jurisdiction. Relying on Kenya Ports Authority v Modern Holdings and Adero v Ulinzi Sacco, the court held that jurisdiction either exists or does not ab initio, cannot be conferred by consent, and may be raised at any stage of proceedings, even on appeal.

p. 3
02

Whether Section 30(1) of the Land Adjudication Act barred the trial court's jurisdiction

Holding

No - the claim was for destruction of crops, not for determination of an interest in land capable of registration, so consent of the adjudication officer was not required

Reasoning

The land was admittedly under adjudication and the register not final, but Section 30(1) bars only proceedings concerning an interest in land. Section 2 defines interest in land by reference to ownership or registrable rights. A claim for damages for crop destruction does not seek determination of a right or interest in land, following Reuben Mwongela M'itelekwa.

p. 4
03

Whether the Respondents proved their case and the special damages on a balance of probabilities

Holding

Yes - the Appellant's defence was a blanket denial with no controverting evidence, and the Agricultural Officer's report proved the damage of Ksh. 120,000

Reasoning

PW3 witnessed the Appellant running over and uprooting the crops; the 1st Respondent pleaded with him by phone as he manned the tractor. Nothing in the defence or witness statements controverted this evidence. Special damages were supported by the Ward's Agricultural Officer's report computing the damage, satisfying the requirement of specific proof.

p. 4

Legal principles established

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  • A jurisdictional objection may be raised for the first time on appeal
  • The consent requirement in Section 30(1) of the Land Adjudication Act applies only to civil proceedings concerning an interest in land, not to claims for damages for destruction of crops
  • A party who asserts facts must support them by evidence; uncontroverted evidence remains unchallenged

Court orders

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  1. 1.Appeal dismissed
  2. 2.Judgment and decree of the trial court upholding the award of special damages of Ksh. 120,000 left undisturbed
  3. 3.Costs awarded to the Respondents

Authorities

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Legislation

  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 2
  • Land Consolidation ActSection 8(1), 8(2)
  • Constitution of KenyaArticle 159
  • Evidence ActSections 107 and 108
  • Registered Land Act (Cap. 300)

Cases cited (11)

  • Selle Vs Associated Motor Boat Co.
    [1968] EA 123
  • Ephantus Mwangi and Another Vs Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278
  • Gichinga Kibutha Vs Caroline Nduku
    [2018] eKLR
  • Mohamed Fugicha Vs Methodist Church in Kenya
    CA No. 22 of 2015
  • Kenya Ports Authority Vs Modern Holdings [E.A] Limited
    [2017] eKLR
  • Adero & Another Vs Ulinzi Sacco Society Limited
    [2002] 1 KLR 577
  • Reuben Mwongera M'Itelekwa Vs Paul Kigea Nabea
    (2014) eKLR
  • Justus Ntuiti Vs Mwirichia Kaumbuthu
    (2004) eKLR
  • Kilusi Julius Sile & 60 others versus Chairperson, Oloirien Adjudication section 'B' Committee & 3 Others
    (2016) eKLR
  • Reuben Mwongela M'itelekwa (Suing as the Legal Representative of the Estate of M'itelekwa M'mucheke Naituri alias M'itelekwa Mucheke) Vs Paul Kigea Nabea & 2 others
    [2019] eKLR
  • Edward Muriga Through Stanley Muriga Vs Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
On appeal from
Chief Magistrate's Court, Maua
CMCC No. 149 of 2013
Jurisdiction invoked
First appeal under the court's appellate jurisdiction; Section 30(1) of the Land Adjudication Act (Cap 284) considered in relation to trial court jurisdiction

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, "Joseph M’Impwi M’Mauta v Ruth Nkirote Gitonga & another [2021] KEELC 2353 (KLR)", Case Analysis (2021). CMCC No. 149 of 2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2353/eng@2021-07-28

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