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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 1849 (KLR)

Kithela Liria v Jacob Nkunja Kabilu [2022] KEELC 1849 (KLR)

Environment and Land Court
2 February 2022
2,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a land ruling because the magistrate never let parties cross-examine or produce documents, ordering a full retrial.

What this practically means

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Executive summary

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The respondent sued the appellant in the magistrates' court claiming Parcel No. 62 Akirang'ondu A adjudication section belonged to his late father, Andrew Kabilu, and sought a declaration of ownership and a permanent injunction. The appellant defended on the basis that he bought the land in 1993 from Joseph M'Muchiri, recorded as owner after the adjudication register was altered following the original owner's death, and that he had compassionately settled the respondent and his mother on 0.2 acres. By a judgment dated 28.12.2018 the trial court dismissed the respondent's suit yet, invoking Article 159 of the Constitution, granted an injunction restraining the appellant from interfering with the land pending completion of adjudication. On appeal, C.K. Nzili (ELC Judge, Meru) held that the trial court had erred: no exhibits were produced or marked, and neither party was cross-examined, rendering the omission fatal given the constitutional and statutory right to test evidence. The court further held the trial court erred in finding it lacked jurisdiction, since the consent to sue had been issued after the respondent's objections were dismissed and no further remedy existed under the Land Consolidation Act, whose adjudication decisions are final. The dispute concerned whether the appellant obtained title from a seller with no good title to pass, not the adjudication register itself. The appeal was allowed, the suit ordered to be heard afresh before a different magistrate, with costs in the course, the mistake being attributed to the trial court.

Key legal issues

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01

Whether the trial court's judgment and injunction were properly grounded in fact and law

Holding

No - the trial court failed to allow production of exhibits and cross-examination, and granted an injunction contrary to its own finding that the respondent had not proved his case

Reasoning

The record showed no documents were produced or marked as exhibits and no cross-examination of the parties occurred. Witness statements are only a guide for oral testimony subject to cross-examination, and Article 50 and the Fair Administrative Actions Act guarantee the right to test evidence. The omission of this elementary process was fatal, and the injunction was granted contrary to the trial court's own finding that the respondent had failed to prove his case.

p. 3
02

Whether the trial court lacked jurisdiction to entertain the suit as filed

Holding

The trial court erred in finding it lacked jurisdiction; the consent to sue had permitted the respondent to come to court after the objection proceedings, and the claim against the appellant (a transferee) did not require joinder of the adjudication officer

Reasoning

The consent to sue allowed the respondent to come to court after his objection was dismissed, since no further remedy existed under the Land Consolidation Act. The dispute actually before the court concerned whether the appellant acquired the land from a seller with no good title to pass, not the accuracy of the adjudication register, so the District Land Adjudication and Settlement Officer did not need to be joined and the trial court wrongly declined jurisdiction.

p. 3
03

The finality of adjudication decisions under the Land Consolidation Act

Holding

Under Section 26, no appeal lies against a decision of the adjudication officer dismissing an objection; the decision is final

Reasoning

Section 26 of the Land Consolidation Act gives an aggrieved party sixty days to lodge an objection, which the adjudication officer considers with the committee, and provides that no appeal shall lie against the dismissal of an objection. This makes the adjudication officer's decision final, which explains why the respondent was granted a consent to sue once his objections 627 and 628 were dismissed.

p. 3
04

Whether a witness statement can substitute for tested oral evidence

Holding

No - a witness statement is only a guide for oral testimony which must be subjected to cross-examination

Reasoning

Relying on Surgipharm Ltd v Kenya Invalid & Pharmacy Supplies Ltd, witness statements remain a guide for oral testimony subject to cross-examination. Order 18 of the Civil Procedure Rules requires the plaintiff to begin, state his case and produce evidence in open court, and the ELC Practice Directions require witnesses to adopt statements and be cross-examined. The absence of any record of production of exhibits or cross-examination vitiated the trial court's findings.

p. 3

Legal principles established

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  • On a first appeal, the court must re-appraise the pleadings, evidence and decision of the lower court and reach its own findings, mindful that the trial court heard the witnesses first hand
  • A document forms part of the evidence only after it is tendered or produced in court and admitted as evidence
  • Under the Land Consolidation Act the decision of the adjudication officer with the committee is final and no appeal lies against dismissal of an objection
  • A party has a right to cross-examine and no evidence affecting a party is admissible without an opportunity to test it by cross-examination

Court orders

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  1. 1.Appeal allowed
  2. 2.Suit to be heard afresh before a different magistrate
  3. 3.Costs in the course

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 47
  • Land Consolidation ActSection 8(1), Section 26
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 18
  • Practice Directions for Environment and Land Court 2014Rule 16(c)
  • Evidence ActCap 80
  • Fair Administrative Actions Act2015

Cases cited (7)

  • Selle & Another –vs- Associated Motor Boat Company Ltd & Others
    [2016] eKLR
  • Surgipharm Ltd –vs- Kenya Invalid & Pharmacy Supplies Ltd & 2 Others
    [2013] eKLR
  • Bhandari –vs- Guatama
    [1964] E.A 606
  • Kenneth Nyaga Mwige –vs- Austin Kiguta and 2 Others
    [2015] eKLR
  • Presbyterian Foundation (A Company Limited by Guarantee) –vs- Bernard Ole Mereu & 4 others
    [2021] eKLR
  • Reuben Mwongela M'Itelekwa –vs- Paul Kigea Nabea & 2 Others
    [2019] eKLR
  • Joshua Mithika & another –vs- Kobia M'Twamwari Kangeri & 2 others
    [2021] eKLR
On appeal from
Magistrates' Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in a land dispute (Environment and Land Court)

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, "Kithela Liria v Jacob Nkunja Kabilu [2022] KEELC 1849 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1849/eng@2022-02-02

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