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ELCDismissedEnvironment and Land Appeal E003 of 2021· [2023] KEELC 16506 (KLR)

Wako Galehu v Hadija Komba

Environment and Land Court
28 February 2023
2,500 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 dismissed an appeal against eviction, confirming that new arguments cannot be raised for the first time on appeal.

What this practically means

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Executive summary

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The Respondent sued the Appellant in the Chief Magistrates Court at Nanyuki for trespass and eviction from Nanyuki Municipality Block IX/382, which she claimed had been allocated to her in 1993 by the Commissioner of Lands as unsurveyed industrial plot H. The Principal Magistrate found for her on November 23, 2021 and ordered the Appellant to vacate within 45 days. On appeal, the Appellant advanced four grounds: that the Respondent was a minor of 15 when allocated the land in 1993 and could hold it only through a trustee; that the land is a riparian reserve along the Likii River and thus public land incapable of private allocation; that the Appellant was the rightful owner; and that he had acquired title by adverse possession after occupying since 1982. The Respondent countered that the minority and riparian issues were never pleaded at trial, that the surveyor's reports were of no evidential value as he was not called to testify, and that limitation could only run from her registration as proprietor in 2016. AK Bor, J dismissed the appeal. The court held that the minority issue was raised for the first time on appeal and failed anyway since the Respondent was an adult at registration in 2016; that the riparian claim was unproven and internally inconsistent, since riparian land could not be occupied by anyone including the Appellant; and that adverse possession could not run against a mere allotment nor over riparian public land. The trial court's finding of ownership, based on the allotment letter, beacon certificate and official search, was affirmed. Appeal dismissed with costs to the respondent.

Key legal issues

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01

Whether the Respondent's title was irregularly obtained because she was a minor at allocation in 1993

Holding

The issue was not pleaded or determined at trial and fails on the merits because she was of age when registered as proprietor in 2016.

Reasoning

The court held the minority point was raised for the first time on appeal; the Appellants could have amended pleadings at trial. In any event, sections 27 and 47 concern trusteeship for registered land, and the Respondent was registered on 29/11/2016 when she was an adult, so nothing turns on the 1993 allotment to a minor.

p. 4
02

Whether the suit land is a riparian reserve rendering the allocation invalid

Holding

The Appellants failed to prove riparian status; the surveyor's report was of limited evidential value and a proper survey under the Survey Act and EMCA would be required.

Reasoning

The District Surveyor's report referred to Block 11/220 rather than the suit property Block 11/382, and the surveyor was not called to testify. The court also noted the internal inconsistency in the Appellants' position: if the land is riparian, nobody, including the Appellants, may occupy it, defeating their own claim to remain.

p. 4
03

Whether the Appellants had acquired title by adverse possession

Holding

The claim failed; limitation runs from registration in 2016, and the claim was inconsistent with the riparian argument.

Reasoning

The Respondent was registered as owner only in 2016; before that the land was under an offer for allocation, so the 12-year limitation period under Section 7 of the Limitation of Actions Act could not have run from 1993. Further, adverse possession cannot be claimed over riparian public land, and the Appellants' occupation claim contradicted their riparian defence.

p. 3
04

Whether the trial court's finding on ownership and eviction should stand

Holding

Yes; the Respondent proved ownership by allotment letter, beacon certificate and official search, while the Appellants tendered no evidence of ownership.

Reasoning

The trial court was presented with a trespass claim supported by proof of allocation and registration; the Appellants' bare assertion of rightful ownership in the defence was unsupported by evidence. The Learned Magistrate's judgment and 45-day eviction order could not be faulted.

p. 5

Legal principles established

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  • A party cannot, on appeal, litigate an issue that was not pleaded or determined before the trial court.
  • If land is a riparian reserve it constitutes public land which cannot be privately allocated or occupied, and adverse possession cannot be claimed over it.
  • A party who alleges riparian status of land must prove it through a proper survey conducted under the relevant laws.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Land ActSection 27
  • Land Registration ActSection 47
  • Land ActSection 12
  • Land ActSection 2
  • Limitation of Actions ActSection 7
  • Constitution of KenyaArticle 67
  • Survey Act
  • Environmental Management and Coordination Act

Cases cited (4)

  • In re HEA (Minor)
    [2019] eKLR

    A child of minority can hold title to land only through a trustee and cannot enter transactions or give consent.

  • Aloys Mataya Moseti v National Environment Management Authority and another
    (2020) eKLR

    Riparian land cannot be privately owned; NEMA not in breach for enforcing that position.

  • Caltex Oil (Kenya) Limited v Rono Limited
    [2016] eKLR

    A trial court cannot make an award on an issue that was not pleaded.

  • Joseph Nyangau Monyenche v Nyamusi Nyamboga and 2 others
    Nyamira ELC No. 35 of 2021

    Too late to seek cross-examination of report authors where no request was made at trial.

On appeal from
Chief Magistrates Court at Nanyuki
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (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, "Wako Galehu v Hadija Komba", Case Analysis (2023). Environment and Land Appeal E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16506/eng@2023-02-28

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