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ELCDismissedEnvironment and Land Appeal 10 of 2022· [2023] KEELC 19310 (KLR)

Ondiegi v Adina & 3 others

Environment and Land Court
3 July 2023
MKMohammed N. Kullow
2,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer lost his appeal because he claimed adverse possession in court for the first time, having pleaded a sale agreement instead.

What this practically means

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Executive summary

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The appellant appealed against the dismissal of his suit in Migori CMC ELC No. 43 of 2021 by Hon. M. Obiero on April 7, 2022. In the trial court he had sought excision and registration of a 100ft x 170ft portion of land and removal of a restriction, claiming he purchased the portion from one Ismael Omenda between 1968 and 1970 and had occupied it for over 53 years. The respondents denied the sale, relied on their title by transmission, and confirmed registering the restriction to protect the land. The appeal was canvassed by written submissions. The court identified the sole issue as whether the appeal was merited. Applying Selle v Associated Motor Boat Co., it re-evaluated the trial record and found the appellant had adduced no evidence in support of his allegations. Critically, the court held that adverse possession, on which the memorandum of appeal was largely founded, was neither pleaded in the plaint nor determined by the trial court; the plaint's prayers were anchored on the sale agreement and amounted to a claim for specific performance. Introducing adverse possession at the appellate stage offended the rule that parties are bound by their pleadings. The court found the trial magistrate properly exercised his discretion in dismissing the claim and saw no reason to interfere. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the appeal was merited and the appellant entitled to the reliefs sought

Holding

Appeal dismissed; the trial magistrate properly exercised discretion in dismissing the plaintiff's claim

Reasoning

On re-evaluation, the appellant adduced no evidence supporting his allegations. His claim was anchored on a sale agreement and specific performance, not adverse possession, which was never pleaded or determined below. Introducing adverse possession on appeal contravenes the rule that parties are bound by their pleadings.

02

Whether adverse possession could be raised for the first time on appeal

Holding

No; the issue was neither pleaded in the Plaint nor determined in the trial court's judgment

Reasoning

The prayers in the plaint (registration of a 100ft x 170ft portion and removal of a restriction) were hinged on the sale agreement with Ishmael Omenda, i.e. specific performance. A party cannot introduce a new issue at the appellate stage.

p. 5

Legal principles established

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  • A first appellate court must reappraise the evidence and draw its own conclusions while making due allowance for not having heard the witnesses
  • Parties are bound by their pleadings and cannot introduce a new cause of action on appeal
  • He who alleges must prove

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Evidence ActSection 107(1)

Cases cited (3)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123

    Duties of a first appellate court in reappraising evidence

  • Peter Gichuki Wanjohi v Julia Mumbi Muturi
    Nyeri ELC Case No. 211 of 2013

    Adverse possession against a deceased person's estate

  • Leonola Nerima Karani v William Wanyama Ndege
    [2012] eKLR

    Change of ownership does not interrupt adverse possession

On appeal from
Chief Magistrate's Court at Migori
CMC ELC No. 43 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Environment and Land Court Act)

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, "Ondiegi v Adina & 3 others", Case Analysis (2023). Environment and Land Appeal 10 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19310/eng@2023-07-03

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