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ELCPartially AllowedKyuso PMELC E009 of 2022 (Appeal)· [2024] KEELC 6235 (KLR)

Isamu v Munyoki (Environment and Land Appeal 1 of 2023) [2024] KEELC 6235 (KLR)

Environment and Land Court
22 July 2024
3,472 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitui upheld a permanent injunction for trespass but cancelled a Kshs. 50,000 damages award because it was never claimed in the pleadings.

What this practically means

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Executive summary

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The Appellant appealed against the judgment of Senior Resident Magistrate Hon. John Aringo delivered on 26th January 2023 in Kyuso PMELC E009 of 2022, which allowed the Respondent's claim for permanent injunction in respect of Land Parcel 3922-Kaiviria Adjudication Section, awarded general damages of Kshs.50,000/= for trespass and costs. The Appellant, who claimed to have bought Plot 62-Kaiviria Adjudication Section from the Respondent's relatives, raised eighteen grounds including failure to analyse evidence, consideration of a repealed law, incomplete record, bias, and failure to visit the suit land. The court framed two issues: whether the trial magistrate misdirected himself on the evidence in granting the injunction and damages, and whether he was biased. The court applied Selle v Associated Motor Boat Co. on its duty to re-evaluate evidence, and sections 13 and 15 of the Land Adjudication Act Cap 284, finding that boundaries had been pointed out and any dispute should have gone to the lands committee. The court found that the adjudication records, the letter of 23rd May 2022 from the Land Adjudication and Settlement Office, and untraversed testimony confirmed the Respondent's ownership, that the Appellant pulled down the fence and trespassed, and that the magistrate showed no bias. However, applying Lamba v NSSF, the court held the Kshs.50,000/= general damages award was for relief not pleaded in the plaint and set it aside. The appeal was dismissed against the injunction and finding of trespass but allowed against the damages award, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the respondent proved ownership and trespass on parcel 3922-Kaiviria Adjudication Section

Holding

Yes; the trial court's finding of trespass and the permanent injunction were upheld

Reasoning

The respondent relied on a letter from the Land Adjudication and Settlement Office dated 23rd May 2022 confirming plot 3922 was demarcated to him as sole owner. The Land Adjudication Officer and the area chief confirmed the boundaries on the ground. This evidence was not directly traversed by the defendant. Boundaries under adjudication are pointed out under sections 13 and 15 of the Land Adjudication Act, and any boundary dispute ought to have gone to the lands committee. The appellant's pulling down of the fence and grazing amounted to trespass.

p. 6
02

Whether the trial court erred in awarding unpleaded general damages of Kshs.50,000/=

Holding

Yes; the award was set aside because no prayer for general damages was pleaded

Reasoning

The plaint sought only a permanent injunction. Citing Lamba v NSSF, the court held that courts cannot grant reliefs not prayed for in the pleadings or regularly sought expressly or by implication. Applying Price v Hilder on judicial discretion, the court found the award of unpleaded damages clearly wrong and set it aside.

p. 6
03

Whether the trial magistrate was biased

Holding

No; the magistrate properly considered and analyzed the evidence and showed no bias

Reasoning

The court found no basis for the allegation of bias. The trial court properly weighed the evidence, including the adjudication records and testimony, and arrived at findings supported by the material before it. The appellant's dissatisfaction with the outcome did not establish bias.

p. 6

Legal principles established

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  • An appellate court may re-evaluate the evidence of a first appeal by way of retrial while making allowance for not having seen or heard the witnesses
  • Trespass is a violation of the right to possession, and a plaintiff must prove a right to immediate and exclusive possession of the land
  • Courts can only grant reliefs prayed for in the pleadings, or such orders as are appropriate where a relief is expressly or impliedly sought
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless it is clearly wrong

Court orders

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  1. 1.The appeal challenging the permanent injunction in terms of prayer (a) of the plaint is dismissed and the trial court's finding on trespass is upheld
  2. 2.The award of general damages of Kshs. 50,000/= is set aside
  3. 3.Each party will bear the respective costs of this appeal
On appeal from
Senior Resident Magistrate's Court, Kyuso
Kyuso PMELC E009 of 2022
Jurisdiction invoked
First appeal to the Environment and Land Court from the Senior Resident Magistrate's court

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, "Isamu v Munyoki (Environment and Land Appeal 1 of 2023) [2024] KEELC 6235 (KLR)", Case Analysis (2024). Kyuso PMELC E009 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6235/eng@2024-07-22

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