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ELCDismissedELCA Case No. 35 of 2019· [2021] KEELC 2456 (KLR)

Joseph Anjichi Aburili & another v George Ochola & another [2021] KEELC 2456 (KLR)

Environment and Land Court at Kakamega
27 July 2021
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed an appeal over family land transferred under a court grant, confirming the transfer stood and awarding costs to the landowners.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the ruling of Mr. W.K. Cheruiyot, SRM in Vihiga PMC ELC No. 18 of 2019, delivered on 23rd August 2019, dismissing the appellants' application for an injunction. The appellants complained that the 1st respondent used a Maseno Court grant, later revoked by the Kisumu High Court, to transfer land parcel West Bunyore/Ebusikhale/2253 to the 2nd respondent, and that as co-administrators both should have executed the transfer. They argued the trial magistrate ignored their submissions and whitewashed dealings with a deceased's estate contrary to sections 45(1) and 82(b)(ii) of the Law of Succession Act. The respondents maintained that the appellant held no proprietary interest capable of defeating the 2nd respondent's registered title, that the grant was not revoked at the time of transfer, and that the High Court distribution of 18th April 2018 reconfirmed the Maseno Court's division in favour of the 1st respondent. Matheka J applied the Giella vs Cassman Brown principles, found the grant had not been revoked when the transfer occurred, and that the High Court never cancelled the resulting title but instead reconfirmed the distribution. The appellant therefore failed to establish a prima facie case with a probability of success. Relying on Mwanasokoni vs Kenya Bus Service, the court declined to interfere with the trial court's findings, which it held were judiciously reached on cogent evidence. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the appellant established a prima facie case for injunction

Holding

No prima facie case was established; the Maseno Court grant was not revoked at the time of transfer and the High Court never cancelled the resulting title, instead reconfirming the distribution

Reasoning

The court perused the lower court file and found that the 1st respondent used a Maseno Court grant which had not been revoked when he transferred the property to himself. The High Court in Kisumu distributed the suit property in favour of the 1st respondent, reconfirming the Maseno Court's division of property, and never cancelled the title now in the 2nd respondent's name. The transfer instruments' validity was therefore not impugned on the facts, and the appellant's claim for an injunction failed at the first Giella threshold.

p. 2
02

Whether the appellate court should interfere with the trial magistrate's findings

Holding

The decision was judiciously arrived at on cogent evidence and the court would not interfere

Reasoning

Relying on Mwanasokoni vs Kenya Bus Service, the court accepted its duty to revisit and evaluate the evidence and reach its own decision, but acknowledged the restraint on appellate interference with findings of fact absent absence of evidence, misapprehension of evidence, or wrong principles. It found the trial ruling based on cogent evidence and judiciously arrived at, so declined to disturb it.

p. 2

Legal principles established

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  • An appeal seeking an injunction must be considered within the Giella vs Cassman Brown principles
  • An appellate court will not ordinarily interfere with findings of fact of a trial court unless based on no evidence, misapprehension of evidence, or wrong principles

Court orders

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Law of Succession ActSection 45(1)
  • Law of Succession ActSection 82(b)(ii)

Cases cited (2)

  • Giella vs Cassman Brown & Co Ltd
    1973 E.A 358
  • Mwanasokoni vs Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Vihiga Principal Magistrate's Court
Vihiga PMC ELC No. 18 of 2019
Jurisdiction invoked
First appeal from subordinate court under the Environment and Land Court Act

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 Anjichi Aburili & another v George Ochola & another [2021] KEELC 2456 (KLR)", Case Analysis (2021). ELCA Case No. 35 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2456/eng@2021-07-27

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