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ELCDismissedEnvironment and Land Appeal E031 of 2022· [2024] KEELC 3522 (KLR)

Murithi v Ciomaroo (Environment and Land Appeal E031 of 2022) [2024] KEELC 3522 (KLR)

Environment and Land Court
11 April 2024
3,667 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 landowners can sue in adjudication areas with proper consent, and dismissed an appeal against an eviction order.

What this practically means

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Executive summary

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This first appeal in the Environment and Land Court at Meru, decided by C.K Yano, J on 11th April 2024, challenged the judgment of Hon. Tito Gesora, C.M in Maua CMCC No. 278 of 2015 delivered on 2nd June 2022. The respondent had sued as registered owner of parcel No. 2122 Amungenti 'A' (about 2 acres), alleging the appellant fraudulently colluded with the DLASO to relocate his 0.50-acre parcel onto her land, and invaded and destroyed her crops and fence on 27th October 2015. She sought a permanent injunction and rectification of the adjudication map. The appellant denied the claim, pleaded lack of jurisdiction, and counterclaimed Kshs. 100,300/= plus general damages for destruction of his fence and crops. The trial court allowed the respondent's suit and dismissed the counterclaim. On appeal, the court framed five issues. On jurisdiction, it held that written consents under Section 8(1) of the Land Consolidation Act issued to both parties removed the statutory bar, so the trial court was properly seized. On the merits, evaluation of the evidence, including the sale agreement showing the appellant's purchased land lay in Ithai village while the respondent's land was in Nkunene, established the respondent's claim and justified the dismissal of the counterclaim. The eviction order, though not prayed for, was upheld as protection of the respondent's Article 40 right to property. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction of the trial court over a land dispute in an adjudication area

Holding

The trial court had jurisdiction because the respondent obtained written consent of the Land Adjudication Officer under Section 8(1) of the Land Consolidation Act before instituting the suit, and the appellant was also issued a similar consent.

Reasoning

Section 8(1) bars instituting or continuing proceedings questioning ownership or interests in land in an adjudication area without the prior written consent of the adjudication officer. Both parties produced consent letters: the respondent's dated 10th November 2015 (P exh 5) and the appellant's dated 8th January 2016 (D exh 7). Compliance with the section therefore cured the jurisdictional objection, and the dispute fell properly before the court.

p. 6
02

Whether the respondent proved fraud and her claim to parcel No. 2122

Holding

The respondent proved her case to the required standard; the land purchased via Gervasio was in Ithai village, distinct from her land at Nkunene, so the appellant had no right to occupy her land.

Reasoning

The sale agreement (P exh 1) showed the land bought by Gervasio from the respondent's husband and later sold to the appellant was in Ithai village. The appellant admitted he was entitled to that land. Witnesses confirmed the two parcels were distinct. There was no evidence that Gervasio or the appellant bought any land at Nkunene, so the appellant's occupation of the respondent's parcel lacked justification and the fraud claim was sustained.

03

Eviction order granted though not expressly prayed for

Holding

The eviction order was justified as an incident of protecting the respondent's right to property after the appellant's invasion was established.

Reasoning

The court held that having found in the respondent's favour and dismissed the counterclaim, the trial court was justified in evicting the appellant. The lower court had visited the site and confirmed the appellant had invaded and fenced the land. The respondent's constitutional right to property under Article 40 warranted the eviction order notwithstanding it was not specifically pleaded in the plaint.

p. 7
04

Evaluation of the counterclaim and reasons for its dismissal

Holding

The trial court rightly addressed all issues in both the main claim and the counterclaim; the counterclaim was properly dismissed.

Reasoning

The appellant argued the judgment violated Order 21 Rule 4 by not addressing the counterclaim. The court rejected this, holding that the trial court's evaluation of the evidence in the main suit necessarily disposed of the counterclaim: since the respondent proved the appellant had no right to the land, his claim for damages for destruction of property could not stand.

p. 7

Legal principles established

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  • A court may hear and determine a dispute over ownership of or interest in land in an adjudication area where the prior written consent of the adjudication officer has been obtained under Section 8(1) of the Land Consolidation Act
  • Allegations of fraud, illegality and misrepresentation must be specifically pleaded and strictly proved
  • A court cannot expand its jurisdiction through judicial craft or innovation

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.The judgment of the trial court (including the injunction, rectification and eviction orders and dismissal of the counterclaim) stands

Authorities

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Legislation

  • Land Consolidation Act (Cap 283)Sections 8(1), 17, 18, 19, 20, 26, 28, 23(5)
  • Civil Procedure RulesOrder 21 Rule 4
  • Land Registration Act No. 3 of 2012Section 24
  • Constitution of Kenya, 2010Article 40

Cases cited (10)

  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] eKLR
  • Secretary County Public Service Board & another Vs Hulbhai Gedi Abdille
    [2017] eKLR
  • Phoenix E.A Assurance Company Limited Vs S.M Thiga t/a Newspaper Service
  • Tobia Ochola Osidi & 13 Others Vs Cyprianus Otieno Ogalo & 6 others
    [2013] eKLR
  • Stephen Kirimi M'rinturi Vs Land Adjudication and Settlement Officer – Igembe District & 3 others, Peter Kumbu Kimunya & another (interested parties)
    [2020] eKLR
  • Owners of Motor Vessel "Lillian S" V Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Samuel Kamau Macharia V KCB and others
    [2012] eKLR
  • Arithi Highway Developers Ltd Vs West End Butchery Ltd & 6 others
    [2015] eKLR
  • Karia Kiarie & 2 others Vs Sammy Magera
    [2018] eKLR
  • Adan Hussein Ali & Rahima Dahir V Geofirey Ndiku Natisya & A.H Hameed Traders
    HCC No. 158 of 2008
On appeal from
Maua Chief Magistrate's Court
Civil Suit No. 278 of 2015
Jurisdiction invoked
First appeal under the applicable appellate provisions of the Civil Procedure Act; suit itself governed by Section 8(1) of the Land Consolidation Act (Cap 283)

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, "Murithi v Ciomaroo (Environment and Land Appeal E031 of 2022) [2024] KEELC 3522 (KLR)", Case Analysis (2024). Environment and Land Appeal E031 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3522/eng@2024-04-11

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