Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKericho CMCC No. 214 of 2015 (Appeal) - Memorandum of Appeal dated 22nd January, 2019· [2024] KEELC 5218 (KLR)

Ngerechi v Koech (Environment and Land Appeal 1 of 2019) [2024] KEELC 5218 (KLR)

High Court of Kenya
11 July 2024
3,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court dismissed a landowner's appeal, confirming that a title deed alone cannot prove ownership where a land sale lacked Land Control Board consent.

What this practically means

#

Executive summary

#
This is a first appeal to the High Court at Kericho (L. A. Omollo, J) against the judgment of Hon. S. M. Mokua, Chief Magistrate, delivered on 5th December, 2018 in Kericho CMCC No. 214 of 2015, in which the trial court dismissed the Appellant's claim for eviction, injunction and damages for trespass over land parcel Kericho/Silibwet/1281 and allowed the Respondent's counterclaim based on adverse possession. The Appellant raised three grounds: that there was no evidence that the transfer of the suit property to him was void; that the trial Magistrate lacked jurisdiction to grant adverse possession; and that the Respondent's failure to pray for cancellation of title rendered his counterclaim unenforceable. The Respondent additionally contended that the appeal, filed on 23rd January, 2019, was out of time under Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act. The court held that when the Christmas recess under Order 50 Rule 4 of the Civil Procedure Rules (21st December to 13th January) is excluded, the thirty-day period lapsed on 27th January, 2019, so the appeal was filed in time. On the merits, the court applied Munyu Maina v Hiram Gathiha Maina to hold that production of a bare title deed was insufficient where root of title was challenged, and that absent evidence of Land Control Board consent for agricultural land, the trial Magistrate correctly found the transaction void. Relying on Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi and Section 9(a) of the Magistrates' Court Act, the court held that duly gazetted Magistrates with pecuniary jurisdiction can determine adverse possession claims. The third ground was not considered, being raised for the first time on appeal. The appeal was dismissed with costs to the Respondent.

Key legal issues

#
01

Timeliness of the appeal

Holding

The Memorandum of Appeal filed on 23rd January, 2019 was within the thirty-day period prescribed by Section 79G of the Civil Procedure Act once the Christmas recess days were excluded, the period lapsing on 27th January, 2019.

Reasoning

Judgment was delivered on 5th December, 2018. Under Order 50 Rule 4 of the Civil Procedure Rules, the period between 21st December, 2018 and 13th January, 2019 is omitted from computation of time. Calculating thirty days from 5th December, 2018 with those days excluded, the period expired on 27th January, 2019. The Memorandum of Appeal was filed on 23rd January, 2019, thus within time, notwithstanding the Respondent's objection.

p. 5
02

Whether the trial Magistrate erred in holding the transfer of the suit property void

Holding

The trial Magistrate did not err. The Appellant produced only a title deed without supporting documents, and the suit property being agricultural land, no Land Control Board consent was evidenced, rendering the transaction void under Section 6(1)(c) of the Land Control Act.

Reasoning

The Respondent challenged the Appellant's root of title, so per Munyu Maina v Hiram Gathiha Maina it was insufficient to merely produce a title deed. The Appellant produced no supporting documents showing how he acquired the land. The suit property was agricultural land requiring Land Control Board consent under Section 6 of the Land Control Act; no evidence of consent existed, so the transaction was void for all purposes.

p. 7
03

Whether the trial Magistrate had jurisdiction over adverse possession

Holding

Duly gazetted Magistrates with the requisite pecuniary jurisdiction have jurisdiction to hear and determine claims of adverse possession; the ground of appeal lacked merit.

Reasoning

Section 9(a) of the Magistrates' Court Act confers on Magistrates' Courts, in exercise of jurisdiction under Section 26 of the Environment and Land Court Act, power to hear land claims within their pecuniary limits. As held in Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi, adverse possession is essentially a dispute on title to land which gazetted Magistrates may handle. The Respondent raised adverse possession by counterclaim and the trial Magistrate correctly addressed it.

p. 8
04

Whether the Respondent's failure to pray for cancellation of title rendered his counterclaim unenforceable

Holding

The court declined to consider this ground because it was not raised before the trial court.

Reasoning

A perusal of the pleadings and trial evidence showed the issue of cancellation of title and its effect was not raised at trial. Citing Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto, the appellate system restricts appellate courts to issues canvassed and decided by the trial court save in exceptional circumstances. Allowing the new point would take the Appellant's opponent by surprise and deny a fair opportunity to respond.

p. 9

Legal principles established

#
  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired the title.
  • Magistrates' Courts duly gazetted under Section 26(3) of the Environment and Land Court Act and with requisite pecuniary jurisdiction have jurisdiction to hear and determine claims of adverse possession.
  • The period between 21st December and 13th January is omitted from computation of time for filing appeals under Order 50 Rule 4 of the Civil Procedure Rules.
  • An appellate court will not consider a new point not raised before the trial court, save in exceptional cases with proper adherence to prescribed procedure.

Court orders

#
  1. 1.The appeal is found to have no merit and is dismissed.
  2. 2.The Appellant to pay costs of the appeal to the Respondent.

Authorities

#

Legislation

  • Land Control Act (Cap 302, Laws of Kenya)Section 6(1)(c)
  • Magistrates' Court ActSection 7 and Section 9(a)
  • Environment and Land Court Act (Cap. 8D)Sections 26(3), 26(4) and 16A
  • Constitution of Kenya
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 Rule 4
  • Land Registration ActSections 24 and 26(1)
  • Limitation of Actions ActSection 38(1)

Cases cited (9)

  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] eKLR
  • Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Francis Likhabila v Barclays Bank of Kenya
    [2020] eKLR
  • Munyu Maina -v- Hiram Gathiha Maina
    [2013] eKLR
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & another
    [2020] eKLR
  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR
  • George Owen Nandy v. Ruth Watiri Kibe, CA No. 39 of 2015
  • Openda v. Ahn
    [1983] KLR 165
  • North Staffordhire Railway Co. v. Edge
    [1920] AC 254
On appeal from
Chief Magistrate's Court, Kericho
Kericho CMCC No. 214 of 2015
Jurisdiction invoked
First appeal from a subordinate court under Section 79G of the Civil Procedure Act; subordinate courts' land jurisdiction under Section 9(a) of the Magistrates' Court Act, Section 26(4) of the Environment and Land Court Act and Article 169(2) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngerechi v Koech (Environment and Land Appeal 1 of 2019) [2024] KEELC 5218 (KLR)", Case Analysis (2024). Kericho CMCC No. 214 of 2015 (Appeal) - Memorandum of Appeal dated 22nd January, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5218/eng@2024-07-11

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