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ELCAllowedBusia CMC ELC No. 128 of 2012 (Appeal)· [2022] KEELC 3008 (KLR)

Mukele v Okumu & 5 others (Civil Appeal 1 of 2020) [2022] KEELC 3008 (KLR)

Environment and Land Court
22 June 2022
AOA. Omollo
3,670 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 in Busia dismissed a landowner's encroachment claim because the county surveyor's report lacked supporting measurements, awarding costs to the defendant.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. L. Ambasi CM in Busia CMC ELC No. 128 of 2012, delivered on 19th December 2019, in which the trial court entered judgment for the 1st Respondent (plaintiff) on the basis of a consent order of 2nd October 2015 and the resulting County Surveyor's report. The Appellant, joined to the suit after the survey report revealed further encroachments, appealed on nine grounds, principally that the trial court lacked jurisdiction over a boundary dispute reserved to the Land Registrar under sections 18 and 19 of the Land Registration Act, and that she was not privy to the consent order. The 1st Respondent countered on jurisdiction and argued the consent order remained unchallenged. The Court framed four issues: jurisdiction, the binding effect of the consent order, merit of the appeal, and the orders to make. On jurisdiction, the Court held the claim was not purely a boundary dispute but one for trespass, injunction and eviction, and distinguished Andrew Marigwa vs Josephat Ondieki, holding the matter properly before the Chief Magistrate's Court. On the consent order, the Court held that although the Appellant was not privy to it, she never sought to set it aside, suffered no prejudice, and remained free to challenge the survey. However, the Court found the County Surveyor's report of encroachment unsupported by measurements or marks, and that the trial court failed to evaluate the Appellant's contrary expert evidence. The Court allowed the appeal, substituting the judgment with dismissal of the 1st Respondent's suit against the Appellant, with costs of the appeal and the suit below awarded to the Appellant. Judgment dated and delivered at Busia on 22nd June 2022 by A. Omollo J.

Key legal issues

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01

Whether the trial court had jurisdiction over the suit

Holding

The matter was properly before the Chief Magistrate's Court; the claim was not purely a boundary dispute but bordered on ownership and encroachment, and the Land Registrar's role as first instance does not oust court jurisdiction.

Reasoning

The court read the amended plaint and found the claim included trespass, injunction, eviction, re-survey and mesne profits - not merely a boundary dispute. It relied on Owners of the Motor Vessel 'Lillian S' on jurisdiction and distinguished Andrew Marigwa vs Josephat Ondieki, where the Court of Appeal held the suit premature, not that the trial court lacked jurisdiction. Hence the magistrate could not be faulted for not striking out the suit.

p. 6
02

Whether the Appellant was bound by the consent order of 2nd October 2015 despite not being a party to it

Holding

The Appellant was bound by, or at least could not complain of, the consent order: she never applied to set it aside, the order caused no prejudice since the Registrar must notify affected parties under section 19(1) of the Land Registration Act, and she remained free to cross-examine the officers or seek a re-visit after joining the suit.

Reasoning

Following Flora Wasike vs Destimo Wamboko, a consent order is contractual and can only be set aside on grounds such as fraud or misrepresentation. No fraud or misrepresentation was alleged. The court distinguished the purpose of the order from the process of its execution, and noted the Appellant filed a defence and produced her own survey report, so the consent did not prejudice her.

p. 6
03

Whether the 1st Respondent proved encroachment by the Appellant's parcel 9127 onto parcel 9128

Holding

The 1st Respondent failed to prove his case against the Appellant. The County Surveyor's report concluded encroachment without supporting measurements, marks or ground measurements, and the trial court erred in relying on it wholly without evaluating it or the Appellant's contrary expert evidence.

Reasoning

The survey report stated that plot 9127 encroached on plot 9128 by 7 meters, but the annexed sketch map had no marks signifying the encroachment area and no ground measurements for parcel 9127 were given. The Appellant produced a Geo-surveys Limited report confirming no encroachment. The trial court's wholesale reliance on the County Surveyor's unevaluated report justified substitution of the judgment with dismissal of the suit against the Appellant.

p. 7

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction must down its tools immediately and its proceedings are a nullity ab initio.
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.
  • The Land Registrar is a point of first instance in resolving boundary disputes, but this does not oust the jurisdiction of the Court over claims that are not purely boundary disputes.
  • On a first appeal, the court is not bound by the findings of fact of the court below and must re-evaluate the evidence and draw its own conclusions.

Court orders

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  1. 1.Judgment entered in favour of the 1st Respondent against the Appellant in the court below is substituted with an order of dismissal of the 1st Respondent's suit as against the Appellant
  2. 2.The Appellant is awarded the costs of this appeal and costs of the suit in the court below

Authorities

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Legislation

  • Land Registration ActSections 18, 18(2), 19, 19(1)
  • Civil Procedure RulesOrder 42 Rule 6(1), Order 42 Rule 11
  • Civil Procedure ActSection 79B

Cases cited (8)

  • James Muchori vs Kenya Power & Lighting
  • Flora Wasike vs Destimo Wamboko
    (1988) 1 KAR 625
  • S. K. Macharia vs Kenya Commercial Bank & 2 Others
    (2012) eKLR
  • George Kamau Macharia vs Dexka Limited
    (2019) eKLR
  • Selle & another -vs- Associated Motor Boat Co. Ltd. & others
    (1968) EA 123
  • Abdul Hammed Saif -Vs- Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Andrew Marigwa vs. Josephat Ondieki
    Kisii ELC No. 1163 of 2016; (2017) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    (1989)
On appeal from
Chief Magistrate's Court, Busia
CMC ELC No. 128 of 2012
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Civil Procedure Act (Section 79B referenced)

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, "Mukele v Okumu & 5 others (Civil Appeal 1 of 2020) [2022] KEELC 3008 (KLR)", Case Analysis (2022). Busia CMC ELC No. 128 of 2012 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3008/eng@2022-06-22

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