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ELCDismissedEnvironment and Land Appeal E2 of 2022· [2023] KEELC 18610 (KLR)

Sugut v Yatich & another; Jepkorir (Interested Party)

Environment and Land Court
5 July 2023
LOL. A. Omollo
3,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost her appeal because she raised a new argument on appeal that she never made at trial.

What this practically means

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Executive summary

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The Appellant, Susan Kimeli Sugut, appealed against the judgment of Hon. R. Yator (PM) delivered on 3rd February 2022 in Molo CMCC ELC 18 of 2020, which dismissed her claim for a permanent injunction and confirmation of ownership of land parcel Nakuru/Ngongongeri/258, and declared that she had trespassed on parcels Nakuru/Ngongongeri/663 and 686. The appeal was disposed of by written submissions. The court framed three issues: whether the trial magistrate erred in finding that the Interested Party had obtained Letters of Administration; whether she erred in failing to hold that the government had caveated the Mau Forest Complex where the suit parcels lie; and who should bear the costs of the appeal. On the first issue, the court held that the point had not been raised before the trial court and the Appellant was precluded from raising it on appeal, applying the Court of Appeal's decision in Republic v Mbaluto. On the second issue, the court accepted that the existence of the caveat was undisputed - confirmed by the surveyor and Land Registrar - but held that the question before the trial court was whether the Appellant's occupation was rightful, not whether a caveat existed. The surveyor's report showed the Appellant had fenced and claimed parcels 663 and 686 rather than 258, and the Land Registrar confirmed parcel 258 was registered to a third party. The court found the trial magistrate correctly applied the facts to the law and dismissed the appeal with costs to the Respondents.

Key legal issues

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01

Raising new issues on appeal

Holding

The Appellant could not raise the issue of Letters of Administration as it was not raised before the trial court

Reasoning

The court relied on the principle that appellate courts are restricted to issues canvassed and decided before the trial court, except in exceptional cases with proper procedure. Raising new issues would take the other party by surprise and deny them a fair opportunity to respond, turning the appellate court into a trial court in disguise.

p. 6
02

Government caveat over Mau Forest Complex

Holding

The existence of the caveat was undisputed but was not the question before the trial court, which concerned rightful occupation and ownership

Reasoning

Both PW2 (Senior Land Surveyor) and the Land Registrar confirmed the caveat over the Mau Forest Complex. However, the trial court's task was to determine whether the Appellant's occupation of the suit parcels was rightful. The surveyor's report showed the Appellant had fenced and claimed parcels 663 and 686, not 258, hence the trespass finding stood.

p. 6
03

Costs of the appeal

Holding

Costs follow the event; the unsuccessful Appellant was to pay the Respondents' costs

Reasoning

Section 27(1) of the Civil Procedure Act gives the court discretion over costs, with the general rule that costs follow the event unless the court otherwise orders for good reasons. No such reasons existed here.

p. 7

Legal principles established

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  • A party is precluded from raising new issues on appeal that were not raised before the trial court
  • An appellate court must reconsider the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27(1)
  • Forest Conservation and Management ActSection 34

Cases cited (4)

  • Mapelu & 13 Others v Cabinet Secretary, Ministry of Lands & Physical Planning & 164 Others; Nyayo Tea Zones Development Corporation & 2 Others (Interested Parties)
    (Environment and Land Petition 12 & 13 of 2018) (Consolidated) [2022] KEELC 13468(KLR)

    Relied on by the Appellant regarding the Mau Forest caveat and non-alienability of forest land

  • Ali Wanje Ziro vs Abdulbasit Abeid Said & Another
    [2022] eKLR

    Relied on by the Respondents in support of dismissal of the appeal

  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR

    Role of the appellate court in reconsidering evidence and drawing its own conclusions

  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR

    Discretion to allow new points on appeal; appellate courts restricted to issues decided by the trial court

On appeal from
Chief Magistrate's Court at Molo
Molo CMCC ELC 18 of 2020
Jurisdiction invoked
First appellate jurisdiction over subordinate court under the Civil Procedure Act; appeal admitted and disposed of by written submissions

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, "Sugut v Yatich & another; Jepkorir (Interested Party)", Case Analysis (2023). Environment and Land Appeal E2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18610/eng@2023-07-05

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