Kandie v Chemuna t/a Avenue Butchery (Appeal E009 of 2023) [2024] KEELC 5344 (KLR)
The bottom line
#The Environment and Land Court in Kabarnet dismissed a landowner's appeal, confirming the Safaricom mast stands on Avenue Butchery's plot.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under section 18 of the Land Registration Act
The lower court had jurisdiction; the dispute was not exclusively a boundary dispute requiring determination by the Land Registrar
Although determination of where the Safaricom mast stands would benefit from expert evidence of the Surveyor and Land Registrar, the dispute involved competing claims of ownership of plots 5/471 and 6/475, not merely ascertainment of boundaries. Following James Anali Alary and Munyali v. Musyoka, the ELC is not divested of jurisdiction where issues go beyond boundary ascertainment, including claims of illegal occupation and trespass.
Weight of expert (surveyor) opinion
The trial court was entitled to reject the surveyor's opinion; it was not binding and the surveyor gave no basis (no measurements) for his conclusion
The court relied on Shah v. Shah and Parvin Singh Dhalay that expert opinion is not binding. The Surveyor took no measurements on the ground and his testimony about the plaintiff's plot's location was found unbelievable. The defendant also failed to explain disparities between his allotment letter and the PDPs, so the trial court was justified in preferring the totality of the other evidence.
Raising unpleaded issues on appeal (capacity of Avenue Butchery, amendment of pleadings, company resolution)
Issues of irregularity of allotment to Avenue Butchery, the changed corporate status, and authorization by resolution were never pleaded or determined below and cannot be raised on appeal
The appellant did not plead irregularity of the allotment to Avenue Butchery nor its legal character in the lower court; these were not issues for determination below. Allowing them on appeal would amount to departing from the parties' pleaded case. Similarly the company resolution point does not flow from the pleaded case or the trial court's determination.
Legal principles established
#- A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence, on misapprehension of the evidence, or on wrong principles
- A suit involving competing claims of ownership is not exclusively a boundary dispute divested from the court by section 18 of the Land Registration Act
- Expert opinion is not binding on the court, which may reject it for good reasons
- Issues not pleaded or determined in the lower court cannot be taken up for the first time on appeal
Court orders
#- 1.The appeal is dismissed with costs to the plaintiff/respondent
- 2.Orders accordingly
- On appeal from
- Kabarnet Chief Magistrate's Court (CMC ELC)
- CMC ELC Case No. 1 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's decision in a land dispute (Environment and Land Court Act); appellant also invoked section 18 of the Land Registration Act on jurisdiction, which the court rejected
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kandie v Chemuna t/a Avenue Butchery (Appeal E009 of 2023) [2024] KEELC 5344 (KLR)", Case Analysis (2024). Environment and Land Appeal (Kabarnet) – appeal from Kabarnet CMC ELC Case No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5344/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.