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ELCDismissedELC Appeal Case No. 7 of 2021· [2022] KEELC 325 (KLR)

National Bank of Kenya v Mary Awino Abiero (suing as the Legal Representative of the Estate of Everest Abiero Ameny & another; Colinet Auctioneers (Interested Party) [2022] KEELC 325 (KLR)

Environment and Land Court
28 April 2022
3,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed two land parcels with different registration references are distinct, dismissing a bank's appeal against a magistrate's ruling.

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 Siaya against the judgment of Principal Magistrate J. Ogondo delivered on 3/6/2021 in Siaya SPM ELC Case Number 219 of 2018, which had dismissed the 1st respondent's trespass claim and allowed the 2nd respondent's counterclaim, permanently restraining the appellant bank and the interested party auctioneers from advertising the suit property for sale. The appellant, which had charged the property, condensed its nine grounds of appeal into one: that the trial magistrate erred by introducing new issues in finding that the suit property (Siaya/Karapul Ramba/1599) and East Alego/Karapul Ramba/1599 were two distinct parcels of land, contrary to the pleadings. The 1st respondent supported the appeal; the 2nd respondent opposed it, maintaining he was an innocent purchaser for value from DW 2. Koross J, exercising the court's first appellate duty to re-evaluate evidence afresh, held that under Section 6 of the Land Registration Act and Section 18(3) and (4) of the repealed Registered Land Act each parcel bears a unique reference, so the two parcels are distinct. The 1st respondent's official search related to East Alego/Karapul Ramba/1599, not the suit property, and she produced no title documents for either. The trial court had not introduced new issues but merely applied its judicial mind to the admitted evidence. The appeal was found unmerited and dismissed; the trial court's judgment and decree were upheld, with costs of the appeal awarded to the 2nd respondent.

Key legal issues

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01

Whether the trial court introduced new issues by treating the suit property (Siaya/Karapul Ramba/1599) and East Alego/Karapul Ramba/1599 as two distinct parcels of land

Holding

The appeal fails. Under Section 6 of the Land Registration Act and Section 18(3) and (4) of the repealed Registered Land Act, each parcel has a unique reference; the two parcels are distinct. The trial court did not introduce new issues but merely applied its judicial mind to the admitted official search certificate, which showed the 1st respondent's search related to East Alego/Karapul Ramba/1599 and not the suit property.

Reasoning

The court reasoned that registration units and sections give each parcel a unique reference. The 1st respondent's certificate of official search depicted registration of Everest over East Alego/Karapul Ramba/1599, not the suit property, and she produced no title documents for either parcel. The 2nd respondent's search and title deed showed the suit property's register opened on 14/5/1987 and was registered in his name on 9/10/2018, previously in DW 2's name. Parties are bound by their pleadings, and once a document is admitted in evidence the court must apply its mind to it.

p. 4
02

The scope of a first appellate court's duty in re-evaluating evidence

Holding

The court is duty-bound to re-evaluate the evidence afresh, reassess the case and make its own independent findings, while bearing in mind it lacked the advantage of seeing and hearing the witnesses, and will rarely interfere with findings of fact absent misdirection.

Reasoning

Relying on Selle & Another v Associated Motor Boat Co. Ltd, the court stated the standard for a first appeal: fresh re-evaluation of evidence with independent conclusions, tempered by the fact that it did not hear the witnesses. Interference with factual findings is warranted only where the trial court misdirected itself, acted on wrong matters, or failed to consider relevant matters and thereby reached a wrong conclusion.

p. 3

Legal principles established

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  • Each parcel of land has a unique reference distinct from any other parcel; parcels in different registration sections/units are distinct parcels of land
  • A first appellate court must re-evaluate the evidence afresh and make its own independent findings, while bearing in mind it did not see or hear the witnesses
  • A document produced and admitted in evidence becomes part of the judicial record and the court is bound to apply its judicial mind to it
  • Costs follow the event and the court has discretion in awarding costs, absent special circumstances

Court orders

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  1. 1.The judgment and decree of the Honorable Magistrate delivered on 3/6/2021 in Siaya SPM ELC Case Number 219 of 2018 is upheld
  2. 2.The 2nd respondent shall have the costs of the appeal

Authorities

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Legislation

  • Land Registration ActSection 6
  • Land Registration ActSection 26(1)
  • Registered Land Act (repealed)Section 18(3) and (4)
  • Evidence ActSection 35

Cases cited (17)

  • Macfoy v United Africa Ltd
    (1961) 3 ALL E.R 1169
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    (2015) eKLR
  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR
  • Hubert L Martin & 2 others v Margaret J Kamar & 5 others
    [2016] eKLR
  • Katende v Haridar & Company Limited
    [2008] 2 EA 173
  • Mwangi James Njehia v Janetta Wanjiku Mwangi & another
    [2021] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Independent and Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    Civil Appeal No. 219 of (2014) eKLR
  • Lawrence Mukiri v Attorney General & 4 others
    [2013] eKLR
  • Eunice Grace Njambi Kamau and Another v The Honourable Attorney General & 5 others
    Civil suit Number 976 of 2012
  • Fletcher v Peck
    10 U.S. 87 1810
  • Central Bank of Kenya Limited v Trust Bank Limited & 4 others
    [1996] e KLR
  • Selle & Another v. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR
  • David Peterson Kiengo & 2 others V Kariuki Thuo
    [2012] eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
On appeal from
Principal Magistrate's Court at Siaya
Siaya SPM ELC Case Number 219 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in environment and land matters

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, "National Bank of Kenya v Mary Awino Abiero (suing as the Legal Representative of the Estate of Everest Abiero Ameny & another; Colinet Auctioneers (Interested Party) [2022] KEELC 325 (KLR)", Case Analysis (2022). ELC Appeal Case No. 7 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/325/eng@2022-04-28

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