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ELCDismissedNot stated in judgment (Meru ELC first appeal)· [2022] KEELC 924 (KLR)

Joseph Evans Karubiu v Peter Mugambi [2022] KEELC 924 (KLR)

Environment and Land Court
9 March 2022
3,457 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Meru confirmed that boundary disputes on land still under adjudication must be resolved by the land adjudication officer, not the courts.

What this practically means

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Executive summary

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The appellant sued the respondent in the trial court as owner of Parcel No. 5565 Amwathi/Maua adjudication section, alleging the respondent encroached on his land in 2003 and in June 2007 erected a permanent house 15-20 ft inside his property. He sought a permanent injunction, declarations of illegality, removal of structures and general damages. The trial court dismissed the claim, finding no encroachment proved, and the appellant appealed to the Environment and Land Court at Meru. The court conducted two scene visits through the District land surveyor and the court itself, with the expert evidence qualified because the land was still under adjudication and map sheets did not tally with the ground. Applying Kagina v Kagina on expert evidence and Tobias Ochola Osidi, the court held that the mandate to ascertain interests and rights in land under adjudication belonged to the land adjudication officer and not the court, and that the appellant, who questioned the adjudication records without enjoining the adjudication office or calling the seller or the officers who fixed the original demarcation marks, had failed to prove his claim. The court also held the trial court properly relied on the witness statement of the appellant's deceased wife since it was admissible under Section 33 of the Evidence Act and was the appellant's own filed statement. The court noted the record of appeal was improperly prepared under Order 42 Rule 13 but proceeded nonetheless. The first appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellant proved encroachment on land still under adjudication

Holding

He failed; expert reports were inconclusive and the mandate lay with the land adjudication officer.

Reasoning

The District land surveyor's reports were inconsistent and qualified because the land was still under adjudication, and the map sheets did not tally with the ground. The court held that ascertaining interests and boundaries in adjudication-section land is for the land adjudication officer. The appellant also failed to call the seller and the adjudication officers who fixed the original demarcation marks, so he could not prove encroachment.

p. 6
02

Non-joinder of the land adjudication and settlement officer and the seller

Holding

It was unfair to impugn adjudication records without the officer being a party; the failure was fatal to the appellant's claim.

Reasoning

The appellant questioned the acreage recorded by the adjudication office yet did not enjoin that office, which is the statutory custodian of the adjudication register, nor call the adjudication officers as witnesses. Nor did he call the seller, Ezekiel Kobia, to clarify the boundaries of what was sold. The court found it unfair to condemn records of a non-party.

p. 5
03

Whether the trial court erred in relying on the witness statement of the appellant's deceased wife

Holding

No error; the statement was admissible under Section 33 of the Evidence Act, filed by the appellant himself, unobjected to and without prejudice.

Reasoning

Section 33 of the Evidence Act admits statements of deceased persons. The appellant filed the witness statement himself and did not withdraw it; the respondent did not object and no prejudice was shown. The statement served to give fair notice of the case, and a party cannot complain of reliance on his own documents and statements.

p. 6
04

Weight of expert evidence on a first appeal

Holding

Trial courts may look at the totality of the evidence rather than rely exclusively on inconclusive or qualified expert opinion.

Reasoning

Applying Kagina v Kagina, the court held expert opinion must rest on proved facts and may be rejected as illogical or speculative. Here the surveyor's opinion was expressly qualified because the area was under adjudication and under the Land Adjudication Act and Land Consolidation Act, so the trial court properly considered all the evidence.

p. 5

Legal principles established

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  • Expert opinion is worthless unless founded on proved facts and may be rejected where illogical or speculative.
  • Mandate to ascertain interests and rights in land under adjudication lies with the land adjudication officer, not the court.
  • Statements of dead persons are admissible under Section 33 of the Evidence Act, and a party cannot complain of reliance on their own filed witness statement.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent.

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)Sections 28 and 30
  • Survey ActNot specified
  • Land Consolidation ActNot specified
  • Evidence ActSection 33
  • Civil Procedure RulesOrder 42 Rule 13; Order 1 Rules 10(2) and 9 Rule 1; Order 18 Rule 3; Orders 3 and 11
  • Constitution of KenyaArticle 159

Cases cited (18)

  • Mbogo –vs- Shah
    [1968] E.A 93
  • Sammy Mbogo –vs- Andrew Abuyeka Angatia & another
    [2017] eKLR
  • Civicon Ltd v Kivuwatt Ltd & 2 Others
    [2015] eKLR
  • Hussein Sharrif Omar –vs- Diamond Trust Bank Ltd
    [2014]
  • Elijah Somboriot Cheruiyot & 3 Others –vs- Anthony Kiarie Waithaka & 3 Others
    [2016] eKLR
  • Chalicha FCA Ltd. –vs- Odhiambo & 9 others
    [1987] KLR 182
  • Peter –vs- Sunday Post Ltd
    (1958) EA 424
  • Kagina –vs- Kagina & 2 Others
    Civil Appeal No. 21 of 2017 [2021] KECA 242 KLR
  • Kiruga –vs- Kiruga & Another
    [1988] eKLR
  • John Mwau Mwongela & 2 Others –vs- Daniel M. Ndivo
    [20198] eKLR
  • Sylvester Okumu Ochami –vs- Maxwel Tabu Abala & Another
    [2015] eKLR
  • Tobias Ochola Osidi & 13 Others –vs- Cyprianus Otieno Ogalo & 6 Others
    (2013) eKLR
  • Paul Rigiri Muthiora –vs- Zachary Muriki Joseph
    [2021] eKLR
  • Ngoingwa Co. Ltd –vs- Dorcas Wanjiku Ikinu
    [2018] eKLR
  • Susan Kanini Mwangangi & another –vs- Patrick Mbithi Kavita
    [2019] eKLR
  • Alphonce Munene Mutinda –vs- Ethics and Anti-Corruption Commission
    [2020] eKLR
  • Mourine Mukonyo v Embu Water and Sanitation Company
    [2020] eKLR
  • Elijah Ngugi Njoroge –vs- Irene Wamuyu Gacheru & Another
    [2020] eKLR
On appeal from
Trial court (magistrates' court, Maua)
Not stated
Jurisdiction invoked
First appeal under Order 42 Rule 13 Civil Procedure Rules

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 Evans Karubiu v Peter Mugambi [2022] KEELC 924 (KLR)", Case Analysis (2022). Not stated in judgment (Meru ELC first appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/924/eng@2022-03-09

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