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ELCDismissedIten Kabarnet ELC Case No. 16 of 2020 (appeal)· [2024] KEELC 5175 (KLR)

Lomul v Samati & another (Environment and Land Appeal 1 of 2023) [2024] KEELC 5175 (KLR)

Environment and Land Court
24 June 2024
LWL. N. Waithaka
3,052 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Kabarnet dismissed a landowner's appeal, confirming that buyers with valid consent and a pleaded case will keep their land.

What this practically means

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Executive summary

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The plaintiff sued the defendants in Iten Kabarnet ELC Case No. 16 of 2020 claiming ownership of parcel Marigat/Maji Ndege B/1141, cancellation of the 2nd defendant's title to plot No. 569, an injunction and damages, alleging trespass and illegal annexation of part of his land. The 1st defendant claimed he bought a portion of plot 569 through his wife; the 2nd defendant counterclaimed for a declaration of ownership, eviction of the plaintiff and damages. The trial magistrate declared both parties registered owners of their respective parcels, ordered the 2nd defendant to surrender her title so the one acre she orally ceded to Chepsoi Kipsarmat (P.W.2) could be carved out and transferred (including the half acre sold to the 1st defendant, held an innocent purchaser), and dismissed the counterclaim for damages. The plaintiff appealed on eight grounds, principally challenging the innocent purchaser finding and the son's capacity to sell. Disposing of the appeal by written submissions, Waithaka J re-evaluated the evidence as a first appellate court. The court found the 2nd respondent had voluntarily ceded land to P.W.2 for school fees, consented to the sale to the 1st respondent's wife, and was unaware of P.W.2's sale to the appellant. The appellant's contentions on capacity were unpleaded, and parties are bound by their pleadings. He failed to prove alleged illegality in adjudication. The court held the trial magistrate properly directed himself, dismissed the appeal and awarded costs to the respondents.

Key legal issues

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Whether the trial court erred in holding the 1st respondent an innocent purchaser for value without notice and in its disposition of the disputed portion of land

Holding

The trial magistrate properly directed himself; the appellant's claims departed from his pleaded case and he failed to prove the alleged illegality in adjudication, so the trial judgment is unassailable.

Reasoning

The court re-evaluated the evidence as a first appellate court. It found the 2nd respondent had orally ceded one acre of plot No. 569 to P.W.2 for school fees; P.W.2 sold part to the appellant, and with the 2nd respondent's consent P.W.2's son sold a portion to the 1st respondent's wife, P.W.2 witnessing the sale. The 2nd respondent was unaware of the appellant's purchase, explaining the boundary dispute. The surveyor's report showed the fence on plot 569. The appellant never pleaded want of capacity of the son, so that contention failed. The appeal was dismissed with costs to the respondents.

p. 6

Legal principles established

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  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, were based on misapprehension of the evidence, or the trial court acted on wrong principles
  • Parties are bound by their pleadings and a court cannot fault a decision on matters not arising from the pleadings

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.Orders accordingly

Authorities

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Cases cited (5)

  • Weston Gitonga & 10 Others v. Peter Rugu Gikanga & another
    (2017) eKLR
  • Katende vs. Haridar & Company limited
    (2008) 2 E.A. 173
  • Selle & another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
On appeal from
Magistrates' Court (Iten Kabarnet ELC Case No. 16 of 2020)
16 of 2020
Jurisdiction invoked
First appellate jurisdiction over appeals from the lower court (trial court) in land matters

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, "Lomul v Samati & another (Environment and Land Appeal 1 of 2023) [2024] KEELC 5175 (KLR)", Case Analysis (2024). Iten Kabarnet ELC Case No. 16 of 2020 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5175/eng@2024-06-24

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