Okello v Odeny (Environment and Land Appeal E004 of 2023) [2024] KEELC 5159 (KLR)
The bottom line
#The Environment and Land Court in Kisumu ruled that trespass disputes belong in court, not with the Land Registrar, and ordered a retrial.
What this practically means
#Executive summary
#Key legal issues
#Whether the lower court's reference of the dispute to the Land Registrar under Section 18 of the Land Registration Act was proper
It was not; the dispute was one of encroachment/trespass, not a boundary dispute, since the two parcels did not even share a boundary and no party pleaded or raised a boundary dispute.
The pleadings raised encroachment by a building, not conflicting boundaries. All survey reports were unanimous that Plot No. 1834 did not share a boundary with the suit property, so no boundary dispute between the parties existed. No party raised jurisdiction, and the Land Registrar has no mandate over trespass. The trial court therefore abdicated its duty to determine the claim before it.
Scope of first appellate court's duty on facts
The appellate court re-evaluates the evidence and draws its own conclusions, but will not interfere with factual findings unless they were not based on evidence, were based on misapprehension of the evidence, or the court acted on wrong principles.
Relying on Kenya Ports Authority v Kuston, Peter v Sunday Post and Makube v Nyamuro, the court restated the first-appeal standard: reconsider and evaluate the evidence de novo while making due allowance for not having seen or heard the witnesses, and interfere with findings of fact only on the established grounds.
Effect of proceeding without jurisdiction
A court that hears a dispute without jurisdiction produces a nullity ab initio, amenable to being set aside ex debito justitiae.
Citing Phoenix of E.A. Assurance v S.M. Thiga, the court adopted the principle that jurisdiction is the authority to hear and determine; proceedings conducted without it are a nullity. This underpinned the setting aside of the lower court judgment that had declined jurisdiction and referred the matter to the Land Registrar.
Legal principles established
#- Where the parties' pleadings disclose a claim of encroachment/trespass and not a boundary dispute, the court erred in referring the matter to the Land Registrar under Section 18 of the Land Registration Act; the Land Registrar has no jurisdiction over trespass.
- On a first appeal the court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses.
- A court is bound by the pleadings of the parties and may not adjudicate on matters not raised; parties set the agenda by their pleadings.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the lower court delivered on 26th January 2023 is set aside in its entirety
- 3.The lower court costs, if already paid to the Respondent, shall be refunded forthwith to the Appellant
- 4.The lower court suit shall be heard afresh at Nyando Law Court before another Magistrate
- 5.The Appellant shall have the costs of the Appeal
- 6.The Deputy Registrar of this court shall return the lower court file to Nyando Law Courts together with a certified copy of this judgment
- On appeal from
- Principal Magistrate's Court at Nyando
- PMC ELC No. 43 of 2020
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court under the applicable appellate provisions of the Magistrates' Courts Act / Environment and Land Court Act (specific provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello v Odeny (Environment and Land Appeal E004 of 2023) [2024] KEELC 5159 (KLR)", Case Analysis (2024). Environment and Land Appeal E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5159/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.