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ELCDismissedAppeal from Busia Magistrate's Court ELRC Case No E101 of 2023· [2024] KEELC 5103 (KLR)

Odiado v Okubi (Environment and Land Appeal E002 of 2023) [2024] KEELC 5103 (KLR)

Environment and Land Court
9 July 2024
7,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Busia dismissed a landowner's appeal, confirming that a valid court-ordered land transfer beats a later succession grant.

What this practically means

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Executive summary

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The Appellant, administrator of the estate of his late father, sued the Respondent in the Chief Magistrate's Court at Busia seeking a permanent injunction against burial of the Respondent's wife on land parcel Samia/Butabona/813, registration of the Appellant and his mother as proprietors per a confirmed grant issued in Busia Succession Cause No 290 of 2019, and declarations voiding prior transactions. The Respondent defended and counter-claimed, relying on a confirmed grant in Nairobi High Court Succession Cause No 120 of 2004 under which he received 3.0 acres, registered in his favour in 2014, and sought Kshs.344,000 for loss caused by the aborted burial. The trial Magistrate (T. A. Madowo SRM) dismissed both the suit and the counter-claim on 25th August 2023. On first appeal before Boaz N. Olao J, the Appellant mounted multiple grounds including lack of proof, unpleaded issues, bias, denial of hearing, and improper refusal of stay. The court re-evaluated the evidence and found the trial Magistrate rightly held the Respondent entitled to 3.0 acres under the earlier, unrevoked superior court confirmed grant, which the later Busia grant could not override. Alleged bias was unsubstantiated; the refusal of further submissions caused no prejudice since submissions are not evidence; and the judgment being a negative order was incapable of being stayed. Ground (h) was omitted as incomprehensible. The appeal was dismissed with costs.

Key legal issues

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01

Effect of the confirmed grant in Nairobi High Court Succession Cause No 120 of 2004 versus the later Busia grant

Holding

The confirmed grant by Onyancha J on 6th October 2010, transmitted 3.0 acres to the Respondent, was never revoked and was acted upon by the Land Registrar; the later Busia grant of 16th November 2021 to the Appellant and his mother could not override it

Reasoning

The Appellant himself was Petitioner in the 2004 succession cause in which the Respondent was recognized as entitled to 3.0 acres. The grant was confirmed by Onyancha J and on 6th November 2014 the Land Registrar registered the parties as owners in the ratio 3.5 and 3.0 acres. The Magistrate, bound by the superior court's confirmed grant, correctly found the Respondent entitled to 3.0 acres; the Busia grant obtained 15 years later excluding the Respondent was fraudulent.

p. 6
02

Whether the trial court decided the case on unpleaded adverse possession

Holding

No; adverse possession was never pleaded by either party and the trial Magistrate never determined the dispute on that basis

Reasoning

The court perused the pleadings and found no party raised adverse possession. The trial Magistrate's mere citation of Section 7 of the Limitation of Actions Act in finding the suit time-barred did not mean she determined the dispute on adverse possession grounds. The ground of appeal was a misreading of the impugned judgment.

p. 7
03

Denial of right to be heard over further submissions

Holding

No prejudice arose; the Appellant was heard, and submissions are not evidence so refusal of an extension could not found a ground of appeal

Reasoning

Counsel sought more time only to respond to paragraphs of the Respondent's submissions said to raise matters outside the evidence, but the trial court is obliged to consider all the evidence on record without prompting from counsel, and counsel were attempting to lead evidence from the bar after the hearing had closed. Further, the memorandum mischaracterised the request, which was for further submissions, not a further affidavit.

p. 7
04

Alleged bias of the trial Magistrate

Holding

The allegations were unsubstantiated and raised without serious conviction

Reasoning

No iota of evidence supported the allegation of bias. Bias is a serious term requiring proof by the party alleging it, and if the Appellant had grounds they should have been raised during trial. The trial Magistrate was impartial in assessing evidence that inevitably led to dismissal of the Appellant's case.

p. 9
05

Stay of execution pending appeal

Holding

The refusal of stay was a proper exercise of discretion and, in any event, the judgment was a negative order incapable of being stayed

Reasoning

The Appellant did not show any misdirection in law, misapprehension of facts, or that the discretion was plainly wrong. More fundamentally, the judgment dismissed both the suit and the counter-claim and imposed no positive obligation on any party, so there was nothing to execute or stay.

p. 11
06

Compliance with pre-trial directions

Holding

The complaint was an afterthought; both parties informed the court they were ready to proceed

Reasoning

Pre-trial directions under Order 11 are a case-management tool. Although the record did not expressly note Order 11 compliance, both counsel confirmed readiness with their witnesses before hearing commenced. The Appellant cannot approbate and reprobate, and no prejudice was demonstrated.

p. 13

Legal principles established

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  • A first appellate court must re-consider and re-evaluate the evidence and draw its own conclusions while allowing for the fact that it neither saw nor heard the witnesses
  • A party who obtains property pursuant to a court order cannot be said to have acquired it illegally or unlawfully, and a later confirmed grant cannot override an earlier unrevoked confirmed grant issued by a superior court
  • Submissions do not constitute evidence and a court can determine a dispute with or without submissions
  • Allegations of judicial bias are serious and the onus lies on the party alleging bias to demonstrate it
  • A negative judgment (dismissal) is not amenable to an order of stay of execution

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.Ground (h) of the amended memorandum of appeal omitted from consideration as incomprehensible
On appeal from
Chief Magistrate's Court, Busia (Hon. T. A. Madowo Senior Resident Magistrate)
Busia Magistrate's Court ELRC Case No E101 of 2023
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court (This being a first appeal, my duty is to re-consider and re-evaluate the evidence on record)

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, "Odiado v Okubi (Environment and Land Appeal E002 of 2023) [2024] KEELC 5103 (KLR)", Case Analysis (2024). Appeal from Busia Magistrate's Court ELRC Case No E101 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5103/eng@2024-07-09

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