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Court of AppealPartially AllowedCivil Appeal No. 103 of 2016

Salim (As Administrator of the Estate of Said Salim - Deceased) v Abdi & another (Civil Appeal 103 of 2016) [2018] KECA 14 (KLR)

Court of Appeal of Kenya
19 April 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
3,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal threw out a trespass claim because the landowner could not clearly prove the petrol station was built on their plots.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Malindi against the judgment of Angote, J. of the Environment and Land Court, which had set aside the trial magistrate's dismissal of the respondents' claim in trespass and allowed their claim. The dispute concerned Plots Nos. TRCC/MINJILA/C/39 and TRCC/MINIJILA/C/40, allegedly purchased by the respondents and encroached upon by the deceased (the appellant's deceased estate) for construction of a petrol station. The appellant raised the jurisdiction of the trial magistrate's court for the first time on second appeal and challenged the respondents' standing. The Court held that an objection to jurisdiction can be raised at any stage, even on appeal and notwithstanding prior acquiescence, because jurisdiction cannot be conferred by consent. On the merits of jurisdiction, the Court found that section 9A(1) of the (repealed) Magistrates' Courts Act had been repealed before the dispute, the Land Disputes Tribunals Act applied only to agricultural land, and nothing suggested the plots exceeded the Chief Magistrate's pecuniary limit, so the trial court had jurisdiction. The Court further held that possession, not ownership, is sufficient to sue in trespass, and the respondents, whose purchase and name-change applications had been approved, were deemed in possession. However, on the evidence, trespass was not proved: it was uncertain whether the plots were distinct or consolidated into Plot 84 and whether the petrol station stood on the respondents' land. The Court allowed the appeal, set aside the ELC judgment, and dismissed the respondents' claim with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issue of jurisdiction could be raised for the first time in a second appeal despite prior acquiescence
  2. 2.Whether the trial magistrate's court had jurisdiction to entertain the respondents' claim in trespass
  3. 3.Whether the respondents had locus standi to institute the suit without establishing ownership of the plots
  4. 4.Whether the tort of trespass against the appellant was proved on the evidence

Key legal issues

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01

Raising jurisdiction for the first time on second appeal

Holding

An objection to jurisdiction can be raised at any stage of the proceedings, even on appeal and even where the party initially admitted to jurisdiction, though it should ideally be raised at the earliest opportunity.

Reasoning

Relying on Adero & Another v Ulinzi Sacco Society Limited, the Court held that jurisdiction either exists or does not ab initio and cannot be conferred by consent or assumed through acquiescence. The Court distinguished this from the principle in Achola v Hongo that points should be raised early, treating earliness as an ideal rather than a bar to the objection.

p. 3
02

Jurisdiction of the Chief Magistrate's court over the trespass claim

Holding

The trial court had jurisdiction: section 9A(1) of the (repealed) Magistrates' Courts Act had been repealed before the dispute, the Land Disputes Tribunals Act did not apply to commercial land, and there was nothing to suggest the plots exceeded the Chief Magistrate's pecuniary limit.

Reasoning

Section 9A(1) of the Magistrates' Courts Act (Cap 10, repealed), which excluded trespass claims from magistrates' courts, had been repealed by section 11 of the Land Disputes Tribunals Act, 1990 with effect from 1st July 1993, before the dispute. The Land Disputes Tribunal jurisdiction covered only agricultural land, whereas the plots were commercial. Pecuniary jurisdiction under section 5(a) allowed a Chief Magistrate to determine claims up to seven million shillings, and nothing suggested the value was exceeded.

p. 3
03

Locus standi of the respondents to sue in trespass

Holding

The respondents, having purchased the plots and having name changes approved in the register, were deemed in possession and thus had locus to sue in trespass even though the register had not been changed and stamp duty/writing formalities were not shown.

Reasoning

Citing Clerk & Lindsell on Torts and Charles Ogejo Ochieng v Geoffrey Okumu, the Court held that trespass is an injury to a possessory right and the proper plaintiff is the person in possession, who may sue even if neither owner nor deriving title from the owner. Since Ester and Omar had sold the plots to the respondents and the name-change applications had been approved, possession could be deemed; non-effecting of the register change did not derogate from possession, and enforcement of the sale agreements was not in issue.

p. 4
04

Whether trespass was proved

Holding

Trespass was not proved: the evidence was uncertain whether Plot Nos. 39 and 40 were consolidated into Plot 84 or remained distinct, and whether the petrol station was constructed on the respondents' plots.

Reasoning

The Court found the surveyor evidence (both Mr. Okoth's post-judgment report and Mr. Kidadia's evidence) unclear on the actual position of the plots, and PW4's evidence inconsistent. Applying Re B (children), the Court noted the law operates a binary system: if the party bearing the burden of proof fails to discharge it, the fact is treated as not having happened. On the totality of the evidence the tort of trespass was not established against the appellant, and the letter of 24th March 2009 did not establish consolidation.

p. 4

Legal principles established

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  • Jurisdiction either exists or it does not; it cannot be conferred by consent of the parties, assumed through acquiescence, and an objection to jurisdiction may be raised at any stage of the proceedings, even on appeal, though ideally at the earliest opportunity.
  • Ownership of land is not a prerequisite to a claim in trespass; possession alone suffices to sue.
  • If the party bearing the burden of proof fails to discharge it, the fact is treated as not having happened; where the tribunal is left in doubt the doubt is resolved by the burden of proof.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.The learned Judge's judgment set aside and substituted with an order dismissing the respondents' appeal (before the trial court) with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Malindi
ELC Appeal No. 13 of 2013
Jurisdiction invoked
Second appeal to the Court of Appeal (appellate jurisdiction); the judgment states the Court's jurisdiction to entertain the appeal is derived from the Notice of Appeal; no specific constitutional or statutory provision is expressly invoked.

Relief refused

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The respondents' claim in trespass (as upheld by the ELC)

Trespass was not proved; the evidence was unclear as to whether Plot Nos. 39 and 40 had been consolidated into Plot 84 and whether the petrol station was erected on the respondents' plots

p. 4

Costs

The appeal is allowed with costs; the respondents' appeal (before the trial court) is dismissed with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties.
p. 3Nature of jurisdiction
It is therefore not necessary for one to establish ownership of land to sustain a claim for trespass. It is enough that the person suing is in possession.
p. 4Who may sue in trespass
In the end, we find that the appeal has merit and is hereby allowed with costs. We set aside the learned Judge's judgment and substitute the same with an order dismissing the appeal before the ELRC with costs.
Final orders / disposition

Issues in the judgment

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minor

The final orders refer to dismissing 'the appeal before the ELRC' although the appeal below was from the Environment and Land Court (ELC); the trial court's judgment is elsewhere described as 'the trial court's judgment'. The reference to ELRC appears to be an error.

minor

The judgment refers to the register as belonging to the 'County Council' and, later, to the 'City Council' when describing the same name-change approvals.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Salim (As Administrator of the Estate of Said Salim - Deceased) v Abdi & another (Civil Appeal 103 of 2016) [2018] KECA 14 (KLR)", Case Analysis (2018). Civil Appeal No. 103 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/14/eng@2018-04-19

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