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ELCDismissedEnvironment and Land Appeal E121 of 2021· [2023] KEELC 21943 (KLR)

Gituma v Thambo

Environment and Land Court at Meru
29 November 2023
CNCK Nzili
2,749 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 a land appeal because the appellant left out a key party's defence from the appeal record and raised arguments he never made at trial.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru (CK Nzili, J) from the judgment of the Principal Magistrate's Court at Tigania (Hon. Wechuli, PM) in ELC 203 of 2017 delivered on 9 November 2021. The appellant, who was the 1st defendant at trial, appealed against the finding in favour of the respondent, who had sued him, the County Government of Meru and the Attorney General over Plot No. 69B Mikinduri market. The respondent claimed the plot was transferred to him through county council application No. 4027 in 2007, that he took possession and paid rates, and that the appellant colluded with the county to register the plot in his own name using a confirmation of grant in a succession cause, condemning the respondent unheard. The Attorney General was struck out after a preliminary objection. The High Court framed eight issues, including the completeness of the record of appeal, whether new unpleaded issues could be raised, and whether the respondent proved his claim. The court held the omission of the County Government of Meru's statement of defence from the record was fatal, since the county was a necessary party and the decree referred to it. It further held that the appellant could not raise unpleaded issues (double allocation, jurisdiction, third-party occupation) on appeal, that written submissions cannot replace pleadings, and that the respondent proved his claim, the appellant's title resting on a fake and revoked confirmation of grant amounting to fraud. The appeal was dismissed with costs.

Key legal issues

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01

Whether omission of the County Government of Meru and its statement of defence from the record of appeal is fatal

Holding

Yes - the omission is fatal and renders the appeal incompetent

Reasoning

The County Government of Meru was a necessary party at trial and the decree appealed against refers to it. The appellant deliberately omitted its statement of defence and failed to include it in the appeal without explanation. The court declined to aid parties showing scant respect for rules, citing Salat v IEBC and United Finance Ltd v Joel Muthui Kyambu where an incomplete record was struck out as incurably defective.

02

Whether unpleaded issues (double allocation, jurisdiction, third-party occupation) could be raised on appeal

Holding

No - parties are bound by their pleadings and cannot raise new issues on appeal

Reasoning

The issues of double allocation, legality of registration, jurisdiction of the trial court and third-party occupation were not pleaded in the defence dated 7.12.2017 nor canvassed at trial. Written submissions cannot substitute pleadings or evidence. The appeal did not fall within the exceptions (illegality or lack of jurisdiction) allowing new points of law on appeal.

p. 5
03

Whether the respondent proved his claim and whether the appellant held a better title

Holding

Yes - the respondent proved his claim; the appellant's title rested on a fake/revoked confirmation of grant amounting to fraud

Reasoning

The respondent produced unchallenged exhibits showing registration in county council records followed his meeting the stipulated terms. The probate court revoked the grant the appellant relied on. Fraud includes knowing misrepresentation to induce another to act to their detriment; the appellant represented a fake confirmation of grant and cannot claim a better title.

p. 5

Legal principles established

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  • A record of appeal must contain all the pleadings in the lower court unless the court dispenses with documents under Order 42 rule 13(4) of the Civil Procedure Rules
  • A party cannot raise new issues on appeal that were not pleaded and never canvassed before the trial court
  • Written submissions cannot replace pleadings or amount to evidence
  • Jurisdictional issues must be raised at the earliest opportunity

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Government Proceedings Act (Cap 40)Section 16(1)(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 42 rule 13(4)

Cases cited (16)

  • Selle v Automative Associated Motor Boat Co. Ltd & Others
    [1968] E.A 123

    Duty of first appellate court to re-evaluate evidence with a fresh perspective

  • Zachariah Okoth Obido vs Edward Akong'o Oyugi & 2 others
    (2014) eKLR

    Court must not aid parties with scant respect for rules and timelines

  • Nicholas Kiptoo Arap Salat vs IEBC & others
    (2013) eKLR

    Court will not bend or circumvent rules under guise of Article 159(2)(d)

  • United Finance Ltd vs Joel Muthui Kyambu
    (2000) eKLR

    Incomplete record of appeal is incurably defective rendering appeal incompetent

  • Richard Leiyagu v IEBC & Civil Appeal No. 18 of 2013

    Raising incomplete documents at appeal hearing is too late

  • Bwana Mohamad Bwana v Silvana Buko Bonaya and 2 others
    [2015] eKLR

    Appeal incompetent without requisite documents

  • Daniel Toroitich Arap Moi v Murithi
    [2014] eKLR

    Written submissions cannot replace pleadings or amount to evidence

  • AG & others vs. Okiya Omtatah Okoiti
    [2020] eKLR

    Jurisdictional issues must be raised at earliest opportunity

  • Jamal Salim v Yusuf Abdi & another
    [2018] eKLR

    Jurisdictional issues must be raised at earliest opportunity

  • Nyaga vs Nyakwara
    [1986] KLR 712

    Jurisdictional issues must be raised at earliest opportunity

  • KCB vs Osebe
    [1982] KLR 296

    Appeal confined to points of law determined at trial, with exceptions

  • Dr. Joseph Ngok vs. Justice Moijo Ole Keiwua & 4 others
    Nrb C.A No. 60 of 1997

    Every step toward acquisition of land title is critical

  • Hubert L. Martin & 2 others v. Margaret J Kamar & 5 others
    [2016] eKLR

    Every step toward acquisition of land title is critical

  • Munyu Maina v Gathiha Maina
    C.A No. 239 of 2004

    Where land title is questioned, every step of acquisition is critical

  • Alice Chemutai Too v Nickson Kipkurui Korir and others
    [2015] eKLR

    Holder of fake/misrepresented title cannot claim better title

  • AG vs Halal Meat Product Ltd
    [2016] eKLR

    Wrongful deprivation of property cannot be justified

On appeal from
Principal Magistrate's Court at Tigania
ELC 203 of 2017
Jurisdiction invoked
First appeal under the Civil Procedure Act and Rules (Order 42) - Environment and Land Court appellate jurisdiction

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, "Gituma v Thambo", Case Analysis (2023). Environment and Land Appeal E121 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21943/eng@2023-11-29

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