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ELCDismissedKapsabet ELC Appeal (No. stated as grounds of appeal against judgment of Hon. Jacinta Orwa, SPM)· [2022] KEELC 1824 (KLR)

Kibiwot Arap Tarus v John Kipkemboi Rono & 2 others [2022] KEELC 1824 (KLR)

Environment and Land Court
31 January 2022
MMM. N. Mwanyale
1,381 words in judgment
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The bottom line

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The Environment and Land Court dismissed a landowner's appeal after documents proved the disputed parcel came from a parent title, not his land.

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 Kapsabet against the judgment of Hon. Jacinta Orwa, Senior Principal Magistrate, dismissing the Appellant's suit. The Appellant, uncle to the Respondents, claimed that 0.7 acres comprising parcel NANDI/CHEPTARIT/228 was illegally excised from his parcel NANDI/CHEPTARIT/227 and sought injunctive orders, registration of parcel 228 in his name, and an order of resurvey. The Respondents maintained that parcel 228 was subdivided from the parent parcel NANDI/CHEPTARIT/10, not from parcel 227. The court, exercising its first appellate duty to re-evaluate the evidence as stated in Selle vs Associated Motor Boat Co. Limited, examined the mutation form (P Exhibit 2) showing NANDI/CHEPTARIT/10 (21.5 acres) subdivided into portions 227 to 237. Although parcel 228 appears adjacent to 227, both the mutation form and the Certificate of Official Search showed it was a subdivision of parcel 10. The acreages of the Respondents' portions plus road access totalled 4.30 Ha, matching the Appellant's share. The court held the trial magistrate reached the correct factual conclusion and did not err. The appeal was dismissed with costs to the Respondents for both the appeal and the suit, and the orders of 27th April 2021 were vacated.

Key legal issues

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01

Origin of parcel NANDI/CHEPTARIT/228

Holding

Parcel 228 was subdivided from NANDI/CHEPTARIT/10, not excised from the Appellant's parcel 227

Reasoning

The mutation form produced as P Exhibit 2 showed NANDI/CHEPTARIT/10 subdivided into portions 227 to 237. Although 228 appears adjacent to 227, the mutation form and the Certificate of Official Search both showed 228 as a subdivision of the parent parcel 10. The acreages of the Respondents' portions, plus road access, equalled the Appellant's 4.30 Ha, confirming no excision.

p. 2
02

Duty of the first appellate court

Holding

The first appellate court must evaluate the evidence and make its own findings

Reasoning

Relying on Selle vs Associated Motor Boat Co. Limited, the court restated the duty of a first appellate court to re-evaluate the evidence and draw its own conclusions. Having done so, the court found the trial magistrate's factual conclusion was backed by the evidence and did not err.

p. 3

Legal principles established

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  • A first appellate court is under a duty to evaluate the evidence and make its own findings thereon
  • Under section 29 of the Land Registration Act, a proprietor is deemed to have notice of every subsisting entry in the Register relating to the land at the time of acquisition

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents for the appeal and the suit in the trial court
  2. 2.The orders issued on 27th April 2021 are vacated

Authorities

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Legislation

  • Land Registration Actsection 29

Cases cited (1)

  • Selle and Another vs Associated Motor Boat Co. Limited
On appeal from
Senior Principal Magistrate's Court (Kapsabet)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (statutory appellate jurisdiction of the ELC)

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, "Kibiwot Arap Tarus v John Kipkemboi Rono & 2 others [2022] KEELC 1824 (KLR)", Case Analysis (2022). Kapsabet ELC Appeal (No. stated as grounds of appeal against judgment of Hon. Jacinta Orwa, SPM). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1824/eng@2022-01-31

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