Ogutu & another v Tamia (Environment and Land Appeal 17 of 2021) [2023] KEELC 72 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld a land sale but cancelled a buyer's title because other purchasers affected by the order were never joined to the case.
What this practically means
#Executive summary
#Key legal issues
#Duty of a first appellate court
A first appeal is by way of retrial; the court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
Relying on Selle & Another v Associated Motor Boat Co Ltd as approved in Barnabas Biwott v Thomas Kipkorir Bundotich, the court restated the settled principles governing a first appeal. It then proceeded to re-evaluate the trial evidence on each condensed ground of appeal rather than defer to the magistrate's findings.
Whether the magistrate considered extraneous factors and the agreement of sale
Grounds (a), (d) and (e) failed. The trial magistrate properly analysed the evidence and considered the submissions; the sale agreement was for two acres and the respondent's testimony was consistent and credible
The court found the memorandum of appeal did not substantiate the claim of extraneous factors, and the magistrate's judgment showed analysis of the facts and consideration of the parties' written submissions. On the agreement of sale, the 1st appellant admitted an agreement existed and that the respondent held beneficial interest, yet produced no agreement to support her claim of a quarter-acre purchase; the trial magistrate's findings were therefore upheld.
Adverse possession pleaded for the first time on appeal and additional evidence
The 1st appellant could not raise adverse possession on appeal; parties are bound by their pleadings and no leave to adduce additional evidence was sought under Order 42 Rules 27, 28 and 29
The ground alleging uninterrupted use since 1987 was in substance a claim of adverse possession, which was never pleaded before the trial court. Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27–29 permit additional evidence on appeal only on conditions which were not met; no leave was sought or basis laid, so the court was constrained from entertaining the ground, applying Safe Cargo Limited v Embakasi Properties Limited and Mohammed Abdi Mohamud.
Restoration of the suit property absent joinder of third-party purchasers
The trial magistrate erred in ordering restoration of the whole suit property when other purchasers holding titles to subdivisions were not joined and never heard
The suit property had been subdivided and portions transferred to purchasers other than the 2nd appellant who were never made parties. Ordering restoration of the suit property cancelled their titles without a hearing, contrary to Article 50 of the Constitution and audi alteram partem. Further, the search showed South Sakwa/Barkowino/9198 was only 0.3ha and the respondent did not establish where the remainder of her acreage lay or join those proprietors. This ground succeeded.
Legal principles established
#- Adverse orders cannot be made against parties who were not joined and given an opportunity to be heard
- Restoration of a subdivided and dispersed parcel cannot be ordered where the respondent did not establish where her acreage lay and join the proprietors
- A party cannot raise adverse possession on appeal without having pleaded it
- Failure to file written submissions is not a proper case for dismissal for want of prosecution
Court orders
#- 1.The Land Registrar, Bondo directed to revoke/cancel the title deed for land parcel number South Sakwa/Barkowino/9198 in the name of the 2nd appellant Efie Akinyi Misachi and register the name of the respondent Margaret Nanjala Tamia as the proprietor
- 2.The 2nd appellant Efie Akinyi Misachi to execute all documents of transfer in respect of South Sakwa/Barkowino/9198 in favour of the respondent Margaret Nanjala Tamia, failing which the Deputy Registrar of the Court to execute the requisite documents in place of the 2nd appellant
- 3.Three quarters of the costs of this appeal awarded to the respondent
- 4.Costs of the lower court suit awarded to the respondent
- 5.The 2nd appellant's earlier withdrawal of her appeal adopted as an order of the court with costs to the respondent
- On appeal from
- Magistrates' Court (trial court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court suit (Civil Procedure Act; appeal by way of retrial)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogutu & another v Tamia (Environment and Land Appeal 17 of 2021) [2023] KEELC 72 (KLR)", Case Analysis (2023). Not stated in extract (appeal from suit over South Sakwa/Barkowino/682). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/72/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.