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ELCPartially AllowedKabarnet ELC Appeal No. E002 of 2022 ( from Kabarnet ELC Case No. E002 of 2022 )· [2024] KEELC 5767 (KLR)

Aengwo v Aengwo (Environment and Land Appeal E007 of 2023) [2024] KEELC 5767 (KLR)

Environment and Land Court
23 July 2024
LWL. N. Waithaka
4,459 words in judgment
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The bottom line

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A Kenyan court confirmed a woman's right to use family land but cancelled orders cancelling her brother's titles because no one had asked for them.

What this practically means

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Executive summary

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The plaintiff (now respondent) sued the defendant (now appellant) in Kabarnet ELC Case No. E002 of 2022 seeking a permanent injunction restraining him from evicting her from Baringo/Tiriondonin/1484 and 1487, parcels she said were subdivisions of the parties' father's original parcel No. 79 from which she, an unmarried daughter, had been excluded. The defendant counterclaimed for an injunction and eviction. The trial magistrate, on 5th October 2023, found the defendant's titles unlawfully acquired, cancelled them under Section 80 of the Land Registration Act, ordered the parcels to revert to the deceased's name pending succession, allocated the plaintiff 1 acre and 0.1 ha for use, and directed each party to bear their own costs. The defendant appealed on numerous grounds, principally that the respondent never pleaded fraud or particulars of it, that the burden of proof was shifted to him, and that the trial court granted orders not pleaded or sought. The respondent filed no submissions. The ELC, per L. N. Waithaka J, re-evaluated the evidence as a first appellate court and framed four issues: departure from pleadings, issuance of unpleaded orders, whether either party made out its case, and the appropriate orders. The court held that the respondent's suit should have succeeded only to the extent of finding that the appellant's registration was subject to a trust in her favour, entitling her to the permanent injunction she pleaded. The unpleaded orders cancelling titles, reverting the land and directing succession could not stand. The appeal partially succeeded: the trial court's final orders were set aside and substituted with a permanent injunction restraining the appellant from evicting the respondent, whose use was restricted to the 1 acre and 0.1 ha identified by the trial court. Each party was ordered to bear their own costs, the dispute being a family matter.

Key legal issues

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01

Whether the trial court departed from the pleadings by granting orders not sought

Holding

The plaintiff departed from her pleaded case and the trial court granted orders not sought, including cancellation of titles, which cannot stand

Reasoning

The plaint sought only a permanent injunction against eviction, yet the trial magistrate cancelled the appellant's titles, reverted the parcels to the deceased's name and ordered reference to succession. Those reliefs arose from evidence and submissions, not pleadings. Citing Karin Annechallis and the Supreme Court in Raila Odinga, the court held unpleaded reliefs cannot stand.

p. 7
02

Whether the plaintiff made out a case for the orders sought

Holding

Yes - her registration-as-trustee finding supported a right of use and possession, justifying the permanent injunction she pleaded

Reasoning

On re-evaluation, the court found the appellant's registration was subject to a trust in favour of the plaintiff, particularly her right to use the portions her late mother cultivated. Her suit ought to have succeeded only to the extent of the pleaded claim for a permanent injunction restraining eviction.

p. 7

Legal principles established

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  • Parties are bound by their pleadings and evidence at variance with the pleadings is for rejection
  • A court will only grant reliefs sought by a party; reliefs such as cancellation or rectification of title must be specifically pleaded
  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless based on no evidence, misapprehension of evidence, or wrong principles

Court orders

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  1. 1.The final orders of the learned trial magistrate were set aside
  2. 2.A permanent injunction was issued restraining the appellant, his agents and/or servants from evicting the respondent from Baringo/Tiriondonin/1484 and 1487
  3. 3.The plaintiff's use and occupation of the suit parcels was restricted to the 1 acre and 0.1ha determined by the trial court
  4. 4.Each party to bear their own costs of the appeal and the suit in the lower court

Authorities

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Legislation

  • Land Registration ActSection 80
  • Land Registration ActSection 26(1)
  • Evidence Act, Cap 80 Laws of KenyaSections 107 and 108
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (10)

  • Kinyanjui Kamau v George Kamau Njoroge
    Nairobi Civil Appeal No.132 of 2005 (unreported)
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    (2000) eKLR
  • Ragot & Company Advocates vs. National Bank of Kenya Ltd
    Kisumu Civil Appeal No.60 & 62 of 2017
  • 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
  • Karin Annechallis vs. Attorney General & 6 others
    (2002) e KLR
  • Lamba v. National Social Security Fund & another
    (Civil appeal E168 of 2021)(2023) KECA 124 (KLR) 3 February 2023
  • Daniel Otieno Migore v. South Nyanza Sugar Co. Ltd
    (2018) e KLR
  • Raila Amolo Odinga & Another vs. IEBC & 2 others
    (2017) e KLR
On appeal from
Magistrates' Court at Kabarnet (ELC Case No. E002 of 2022)
Kabarnet ELC Case No. E002 of 2022
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court decision ( appeal by the defendant from the lower court judgment )

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, "Aengwo v Aengwo (Environment and Land Appeal E007 of 2023) [2024] KEELC 5767 (KLR)", Case Analysis (2024). Kabarnet ELC Appeal No. E002 of 2022 ( from Kabarnet ELC Case No. E002 of 2022 ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5767/eng@2024-07-23

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