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ELCPartially Allowed· [2024] KEELC 1211 (KLR)

Anyona v Oduor & another (Environment and Land Appeal E010 of 2022) [2024] KEELC 1211 (KLR)

Environment and Land Court
7 March 2024
4,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed a registered landowner wins trespass claims and cannot have title cancelled without proven fraud, giving the occupiers 180 days to vacate.

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 Siaya against a magistrates' court judgment which had dismissed the appellant's trespass suit, found it statute-barred, and revoked her title to land parcel East Asembo/Ramba 4247 in favour of the previous proprietor. An earlier judgment of the ELC of 2/03/2023 had been vacated and the appeal heard de novo. The court first held the appeal was competent: no leave was needed because Order 43 Rule 3 of the Civil Procedure Rules excludes final determinations, and the memorandum of appeal was filed within the 30-day period under Section 16A(2) of the Environment and Land Court Act. On the grounds of appeal, the court held (1) the ground about the 1st respondent's participation without appearance failed because no objection was raised at trial; (2) the suit was not time-barred, since the claim was founded on continuing trespass, each continuance being a fresh cause of action, and the respondents' permissive rights had lapsed when the head licensee Grace vacated in 2018; (3) the trial magistrate erred in cancelling the appellant's title without any pleaded counterclaim or proof of fraud to the required standard, her registered title being prima facie and indefeasible under Sections 24 and 26 of the Land Registration Act; and (4) failure to produce a written sale agreement was not fatal, oral land contracts being permissible before June 2003, with part performance evidenced. The appeal was allowed, the lower court's judgment set aside, a declaration of ownership issued, the respondents given 180 days to vacate, a permanent injunction issued, and general damages of Kshs. 100,000/- awarded for trespass. Each party was directed to bear their own respective costs of the appeal and the lower court suit.

Key legal issues

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01

Competency of the appeal (leave and timeliness)

Holding

The appeal was competently before the court: no leave was required because Order 43 Rule 3 excludes final determinations, and the memorandum of appeal was filed within 30 days of the impugned judgment.

Reasoning

The court examined Section 16A(2) of the Environment and Land Court Act, a mirror of Section 79G of the Civil Procedure Act, requiring filing within 30 days of the impugned judgment. Judgment was rendered on 8/03/2022 and the memorandum filed on 4/04/2022, not 26/07/2022 as counsel asserted. Order 43 Rule 3 of the Civil Procedure Rules excludes appeals from final determinations, so the appellant could appeal as of right.

p. 4
02

Whether a stranger who did not enter appearance could participate in the trial

Holding

The ground failed. Although the 1st respondent had no right of audience without appearance and defence, the appellant's counsel never objected at trial, so the issue could not be raised for the first time on appeal.

Reasoning

The court held the appellant, who was represented, never raised an objection to the 1st respondent's participation, so the trial court was never given an opportunity to decide it and thereby form a basis for appeal. The ground was a non-issue at trial and was being raised late in the day; the appellate court could not usurp the trial court's power.

p. 4
03

Whether the suit was statute-barred under Section 7 of the Limitation of Actions Act

Holding

The trial magistrate erred in finding the suit time-barred; the claim was founded on continuing trespass, for which a fresh cause of action arises each day.

Reasoning

The appellant's claim was for continuing trespass after the head licensee Grace's permission ended in 2018. Relying on Gladys Koskey v Benjamin Mutai and the Clerk and Lindsell formulation, the court held every continuance of trespass is a fresh trespass creating a new cause of action, so Section 7 of the Limitation of Actions Act did not bar the suit. The respondents' permissive rights lapsed with Grace's departure.

p. 5
04

Whether the trial magistrate erred in revoking the appellant's title without a pleaded claim of fraud or counterclaim

Holding

The revocation of the appellant's title was erroneous: no fraud was pleaded, particularised or proved, and a court cannot grant relief absent a prayer.

Reasoning

Under Sections 24 and 26 of the Land Registration Act the appellant's title was prima facie and indefeasible. The 2nd respondent pleaded fraud but did not particularise or prove it to the required standard, nor counterclaim. Citing the Supreme Court's adoption of Arikala Narasa Reddy, the court held that in the absence of pleadings, evidence produced cannot be considered and issues may not be framed beyond the pleadings.

p. 7
05

Whether failure to produce an agreement for sale vitiated the appellant's root of title

Holding

Failure to produce a written agreement was not fatal because pre-June 2003 land contracts could be made orally, and part performance was evidenced by the respondents' entry in 1993.

Reasoning

The court noted that before the Section 3(3) Law of Contract Act amendment took effect on 1/06/2003, oral contracts for land were permissible where conditions were met. The appellant explained her root of title through Justus, corroborated by Asha, and partial performance was shown by the 1993 entry onto the property. The trial magistrate ought to have inquired whether the agreement was oral or written.

p. 7
06

General damages for trespass

Holding

Trespass being actionable per se, general damages of Kshs. 100,000/- were awarded despite the absence of evidence of specific loss.

Reasoning

Although the appellant pleaded general damages and did not lead evidence quantifying her loss, the court held trespass is actionable per se and, having established the respondents were trespassers, awarded Kshs. 100,000/- as general damages.

p. 8

Legal principles established

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  • On a first appeal, the court revisits the evidence afresh, analyses and evaluates it and arrives at its own independent conclusion, while bearing in mind the trial court's advantage of observing witness demeanour.
  • Continuing trespass gives rise to a fresh cause of action from day to day, so the Limitation of Actions Act does not bar a suit founded on continuing trespass.
  • A person who lawfully enters land under licence commits trespass by remaining after the licence has been terminated; sub-licensees derive no independent right once the head licence ends.
  • Under Sections 24 and 26 of the Land Registration Act, a registered proprietor's title is prima facie, absolute and indefeasible, subject only to challenge on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.
  • Fraud must be specifically pleaded, particularised and proved to a standard higher than a balance of probabilities but not beyond reasonable doubt.
  • Parties are bound by their pleadings; a court cannot grant relief or make findings on matters not pleaded, and no party may travel beyond its pleadings.
  • A party who fails to enter appearance and file a defence does not have a right of audience in the proceedings, but a failure to object to such participation at trial deprives the appellate court of the ground.

Court orders

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  1. 1.The entire judgment of the lower court is set aside
  2. 2.A declaration that the appellant is the rightful registered owner of Land Parcel No. East Asembo/Ramba/4247
  3. 3.The respondents are granted 180 days from service of the orders to remove themselves and their developments from the suit property and give the appellant vacant possession, failing which the appellant may forcefully evict the respondents, their servants or agents
  4. 4.A permanent injunction restraining the respondents, their servants, agents and workers from entering or occupying, constructing, destroying, damaging or dealing with land parcel no. East Asembo/Ramba 4247
  5. 5.General damages for trespass awarded in the sum of Kshs. 100,000/- payable by the respondents to the appellant
  6. 6.Each party to bear their respective costs of this appeal and the lower court suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 43 Rules (2) and (3)
  • Civil Procedure RulesOrder 6 Rule 1
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 2 Rule 10(1)
  • Environment and Land Court ActSection 16A(2)
  • Civil Procedure ActSection 79G
  • Limitation of Actions ActSection 7; Section 4
  • Land Registration ActSections 24 and 26
  • Law of Contract ActSection 3(3) (as repealed by Statute Law (Misc. Amendments) No. 2 of 2002)
  • Statute Law (Misc. Amendments) No. 2 of 2002

Cases cited (12)

  • Selle v Associated Motor Boat Company Ltd
    [1968] EA 123
  • Maliamu Ncurubi M’ibiri v Francis M’imanyara M’ringera
    [2011] eKLR
  • Mbira v Gachuhi
    [2002] 1 EA
  • Gladys Koskey v Benjamin Mutai
    [2017] eKLR
  • Nguruman Limited v Shompole Group Ranch & 3 Others
    Civil Appeal No 73 of 2004, reported in 2007 KLR
  • Laxmi Ram Pawar v Sitabai Balu Dhotre & anr
    Civil Appeal No. 2789 of 2005
  • Smt Kiran Arya & Anr. v. Ambalal Sarabhai Enterprises Ltd. & Ors.
    CS No. 324 of 1989 [2013] Inwbkohc 12035 (12 August 2013)
  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another
    (2013) eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Elijah Kipng’eno Arap Bii v KCB & Another
    Civil Appeal Number 276 of 2018
  • Raila Amolo Odinga & Another v IEBC & 2 Others
    [2017] eKLR
  • Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & Another
    Civil Appeal Nos. 5710-5711 of 2012 [2014] 2 S.C.R.
On appeal from
Magistrates' Court (trial court)
Suit filed by plaint dated 18/02/2021
Jurisdiction invoked
First appeal to the Environment and Land Court under Section 16A(2) of the Environment and Land Court Act (mirror of Section 79G of the Civil Procedure 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, "Anyona v Oduor & another (Environment and Land Appeal E010 of 2022) [2024] KEELC 1211 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1211/eng@2024-03-07

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