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ELCDismissedEnvironment and Land Appeal (Kabarnet) – appeal from Kabarnet CMC ELC Case No. 1 of 2017· [2024] KEELC 5344 (KLR)

Kandie v Chemuna t/a Avenue Butchery (Appeal E009 of 2023) [2024] KEELC 5344 (KLR)

Environment and Land Court
18 July 2024
3,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kabarnet against the trial magistrate's judgment in Kabarnet CMC ELC Case No. 1 of 2017, which had allowed the plaintiff's (Avenue Butchery's) claim for a permanent injunction over unsurveyed residential plot No. 5/471 Kabarnet and dismissed the defendant's defence and counterclaim over plot No. 6/475. The dispute centered on which plot the Safaricom communication mast stands on. The appellant raised numerous grounds, chiefly that the lower court lacked jurisdiction under section 18 of the Land Registration Act because the dispute was a boundary dispute; that the allotment of plot 5/471 to the unincorporated business name Avenue Butchery was illegal and pleadings should have been amended after incorporation; that a company resolution was required for PW1 and the advocates to act; and that the trial magistrate wrongly departed from the surveyor's expert opinion. Waithaka J held that the jurisdictional challenge failed, following authority that the ELC is not divested of jurisdiction where a dispute goes beyond mere boundary ascertainment. Issues of the allotment's legality, the plaintiff's legal character, and company authorization were never pleaded or determined below and could not be raised on appeal. The trial court was entitled to reject the surveyor's opinion, which lacked any on-ground measurements and was contradicted by disparities in the appellant's own allotment documents. The first appellate court re-evaluated the evidence, found no basis to interfere, and dismissed the appeal with costs to the plaintiff/respondent.

Key legal issues

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01

Jurisdiction under section 18 of the Land Registration Act

Holding

The lower court had jurisdiction; the dispute was not exclusively a boundary dispute requiring determination by the Land Registrar

Reasoning

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.

p. 7
02

Weight of expert (surveyor) opinion

Holding

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

Reasoning

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.

p. 7
03

Raising unpleaded issues on appeal (capacity of Avenue Butchery, amendment of pleadings, company resolution)

Holding

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

Reasoning

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

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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, 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

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  1. 1.The appeal is dismissed with costs to the plaintiff/respondent
  2. 2.Orders accordingly

Authorities

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Legislation

  • Land Registration Actsection 18

Cases cited (13)

  • Karathe Kiarie & 2 others vs Administrators of the Estate of John Wallace Mathare (deceased) & 5 others
    (2013) eKLR
  • Thome Dynamics Ltd & another vs. Nzioka & 12 others; County Government of Nairobi & another (Interested Party)
    (2024) KEELC 3258 KLR
  • Affordable Homes Africa Ltd vs. Henderson & 2 others
    (2004) eKLR
  • East African Portland Cement Ltd vs. Capital Markets Authority & 4 others
    (2014) eKLR
  • Kimatu Mbuvi vs. Augustine Munyao Kioko
    (2001) eKLR
  • African Line Transport Co. Ltd v the Hon Attorney General
    (2007) eKLR
  • James Anali Alary v. John A.A Ikokonyi
    (2022) eKLR
  • Munyali v. Musyoka
    (Environment and Land Appeal 19 of 2021)(2022) KEELC 3247 (KLR) 26 July 2022
  • Selle & Another vs. Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
  • Shah and another vs. Shah and others
    (2003) 1 EA 290
  • Parvin Singh Dhalay vs. Republic
    (1997) eKLR
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

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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, "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

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