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ELCPartially AllowedNyahururu ELC Appeal (from Nyahururu CM ELC No. 384 of 2018)· [2024] KEELC 4237 (KLR)

Maina (Suing as the administrator of the Estate of Wilson Maina Kahora) v Ngunjiri (Environment and Land Appeal E062 of 2023) [2024] KEELC 4237 (KLR)

Environment and Land Court
16 May 2024
3,531 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 ruled the landowner deserved a fair trial and sent the boundary dispute back to the magistrates' court for a fresh hearing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nyandarua against the judgment of Hon. C. Obulutsa (CM) dated 11 March 2021 in Nyahururu CM ELC No. 384 of 2018, which dismissed the appellant's suit seeking a permanent injunction, reopening of an access road, and mesne profits over Parcel Nyandarua/Ndemi/15xx, alleging that the respondent had encroached upon it and closed its access road. The trial court had held that the appellant failed to prove his claim on a balance of probabilities and that the boundary dispute should first have gone to the land registrar under Section 18 of the Land Registration Act. On appeal, the court restated the duty of a first appellate court to re-evaluate the evidence, citing Selle, Peters and Watt. It found the dispute was not merely a boundary dispute but one involving trespass and encroachment which the trial court could adjudicate. However, it held the appellant did not receive a fair trial: the trial court failed to pursue the order for production of the original Ndemi Settlement Scheme demarcation map, and the district surveyor's report was defective, having been prepared without involving the owners of the affected parcels. The appeal was allowed only to that extent, the trial judgment was set aside, the suit was remitted for hearing de novo with directions for production of the map and a fresh site visit by the land registrar and government surveyor upon notice to all affected parties, and each party was ordered to bear its own costs of both the appeal and the trial.

Key legal issues

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01

Whether the trial court erred in holding that the dispute was a boundary dispute referable to the land registrar under Section 18 of the Land Registration Act

Holding

The trial court erred; the dispute involved allegations of trespass, encroachment and closure of an access road, which the trial court could adjudicate, though the land registrar and surveyor could properly be involved.

Reasoning

The court held the dispute was not simply a boundary dispute since the appellant alleged the respondent entered and occupied the entire Parcel 15xx, undertook developments, and closed the access road. The suit could properly have been adjudicated by the trial court, and involving the land registrar and government surveyor would not have been improper, but exclusion of affected stakeholders from the site visit rendered the process unfair.

p. 7
02

Whether the appellant received a fair trial

Holding

No; the trial was unfair because the trial court failed to pursue production of the original demarcation map and relied on a defective district surveyor's report prepared without involving affected parties.

Reasoning

The original map for demarcation of Ndemi Settlement Scheme would have greatly assisted the court, yet the trial court failed to follow up on the order for its production. The district surveyor's report was prepared without involving the owners of Parcels 73 and 6xx, did not indicate who was present, what materials were used, and lacked supporting official maps, making it unreliable evidence.

p. 7
03

Costs of the appeal

Holding

Although costs follow the event, given the peculiar circumstances neither party should be penalized in costs.

Reasoning

The court reiterated that costs are discretionary and follow the event under the proviso to Section 27 of the Civil Procedure Act, and a successful party should ordinarily get costs unless the court directs otherwise for good reason. Because the appeal succeeded only on the ground of an unfair trial, the court directed each party to bear their own costs of both appeal and trial.

p. 7

Legal principles established

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  • A first appellate court must analyze, reconsider and re-evaluate the entire evidence on record while making due allowance for the fact that it neither saw nor heard the witnesses.

Court orders

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  1. 1.The appeal be and is hereby allowed to the extent specified in the disposal orders.
  2. 2.The judgment of the trial court dated 11.03.2021 dismissing the Appellant's suit with costs is set aside.
  3. 3.The suit is remitted to the Chief Magistrate's court for hearing de-novo, with the trial court to follow up on the earlier order for production of the map for demarcation of Ndemi Settlement Scheme to its logical conclusion and to require a fresh site visit by the land registrar and government surveyor upon notice to all affected parties.
  4. 4.Each party shall bear his own costs of both the appeal and the trial.

Authorities

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Legislation

  • Land Registration ActSection 18
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters -vs- Sunday Post Ltd
    [1958] EA 424
  • Watt -vs- Thomas
    [1947] A.C. 424
  • Kapsiran Clan -vs- Kasagur Clan
    [2018] eKLR
  • Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Nyahururu
Nyahururu CM ELC No. 384 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act and 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, "Maina (Suing as the administrator of the Estate of Wilson Maina Kahora) v Ngunjiri (Environment and Land Appeal E062 of 2023) [2024] KEELC 4237 (KLR)", Case Analysis (2024). Nyahururu ELC Appeal (from Nyahururu CM ELC No. 384 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4237/eng@2024-05-16

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