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Court of AppealDismissedCivil Appeal No. 15 of 2013

Alfred Nyangweso Akunga v Joshua Hamisi Ondimu [2018] KECA 243 (KLR)

Court of Appeal
11 October 2018
2,576 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that access road disputes between landowners belong in court, not with the Land Registrar, and dismissed the appeal with costs.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Kisumu against the judgment of Musinga, J. of the High Court at Kisii dated 16th September 2011 in Kisii Civil Suit No. 81 of 2007. The respondent, owner of plot Kisii/Nyaribari Chache/B/B/Boburia/6498, had sued the appellant, owner of plot 4086, seeking a permanent injunction restraining him from constructing structures on an alleged four-metre access road passing through the appellant's property. The trial judge found, relying on a Land Registrar's report prepared pursuant to a court order, that the Physical Planner's subdivision plan had provided for a four-metre access road which the Surveyor inadvertently omitted from the mutation forms, and granted the injunction. Before the Court of Appeal the appellant raised twenty grounds argued in five clusters: lack of jurisdiction under section 21(4) of the repealed Registered Land Act; failure to consider the evidence of the defence's District Land Registrar; unproved special damages; and failure to render a reasoned judgment. The Court held that the ouster in section 21(4) did not apply because the pleadings and relief concerned the existence and closure of an access road, not a boundary dispute; the parties' plots were not even adjoining. The Court re-evaluated the evidence and found the trial judge entitled to prefer the Land Registrar's report and the respondent's evidence over that of the defence witness Mogare. Special damages were held strictly proved, being pleaded and established by receipts produced by consent. The complaint about the judgment's form also failed. The appeal was dismissed 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 trial court had jurisdiction to determine the dispute given section 21(4) of the repealed Registered Land Act vesting boundary disputes in the Land Registrar
  2. 2.Whether the learned judge erred in his findings concerning the existence of the alleged access road
  3. 3.Whether the special damages of Kshs.6,040 were strictly proved
  4. 4.Whether the learned judge's judgment was defective for failing to set out points for determination and reasons in accordance with the law

Key legal issues

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01

Jurisdiction: whether the trial court was ouster-barred from determining the dispute by section 21(4) of the Registered Land Act

Holding

The ouster did not apply because the dispute concerned the existence and closure of an access road, not the boundaries of registered land; the parties were not even adjoining owners.

Reasoning

The Court examined the pleadings and found no reference to a boundary dispute, and neither party had referred any such dispute to the Land Registrar. The relief sought was a permanent injunction against interference with an access road, not boundary determination. The parties' plots were not adjoining, there being two plots in between. Accordingly, section 21(4) of the repealed Act was inapplicable and the trial judge had jurisdiction.

p. 3
02

Whether the trial judge erred in finding that a four-metre access road existed between the parties' parcels

Holding

The trial judge was entitled to prefer the Land Registrar's report and the respondent's evidence over that of the defence witness Mogare; the appeal court found no basis to interfere.

Reasoning

On 24th July 2007 the court had directed that the District Surveyor and Land Registrar visit the site; the resulting report concluded that a four-metre access road proposed by the Physical Planner was inadvertently omitted by the Surveyor in preparing the mutation forms during subdivision. The trial judge, having heard and observed the witnesses, chose to believe the respondent's evidence. Mogare had been in Kisii only 1½ years, was not privy to the earlier report and had not visited the land.

p. 3
03

Whether the special damages of Kshs.6,500 were strictly proved

Holding

Special damages were specifically pleaded and proved by receipts produced by consent, so the award was proper.

Reasoning

The damages were pleaded in the plaint. A bundle of receipts, identified in court by the respondent, was produced in evidence by consent of the parties, and the appellant raised no issue regarding them at trial. The Court was therefore satisfied that the strict proof requirement was met.

p. 3
04

Whether the trial judge's judgment was defective for failure to set out points for determination and reasons

Holding

Although the judge did not specifically set out the issues, he addressed the claim, the defence and the evidence and made a decision that finally determined the dispute; the complaint failed.

Reasoning

The Court perused the judgment and was satisfied that the learned judge addressed the respondent's claim and the appellant's defence together with the evidence adduced. Failure to specifically enumerate the issues was not fatal where the judge was clearly alive to the issues and the decision finally determined the dispute.

p. 3

Legal principles established

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  • Section 21(4) of the repealed Registered Land Act bars a court from entertaining an action relating to a boundary dispute over registered land only where the dispute is actually a boundary dispute; where the pleadings and relief sought concern an access road rather than boundary determination, the ouster does not apply.
  • A jurisdictional issue, being a legal issue, may be raised at any stage of the proceedings even if not raised before the trial court.
  • An appellate court will not fault a trial judge's preference between conflicting evidence from the same office where the judge had the benefit of assessing the witnesses' demeanour and there was sufficient evidence supporting the conclusion.
  • Special damages specifically pleaded and proved by a bundle of receipts produced by consent, to which no issue was raised at trial, are properly proved.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
Kisii Civil Suit No. 81 of 2007
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers over High Court civil appeals; appeal filed as Civil Appeal No. 15 of 2013

Relief refused

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All grounds of appeal, including the challenge to jurisdiction, the finding on the access road, proof of special damages and adequacy of the judgment

The Court found no substance in any of the grounds; the dispute was not a boundary dispute, the trial judge's findings were supported by evidence, and special damages were properly pleaded and proved

p. 3

Costs

The appeal was dismissed with costs (costs awarded to the respondent).

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.

In our view, the dispute between the parties was not a boundary dispute and section 21(4) was not applicable.
p. 3Ouster of court jurisdiction over boundary disputes under the repealed Registered Land Act
Be that as it may, the issue of jurisdiction being a legal issue, it is one that can be raised at any stage.
p. 2Jurisdiction may be raised at any stage
On our part, we find no reason to fault the learned judge as there was sufficient evidence upon which the learned judge having the benefit of the witnesses’ demeanour could come to that conclusion.
p. 3Deference to trial judge's assessment of witnesses on conflicting evidence
For the above reasons, we find no substance in this appeal. It is accordingly dismissed with costs.
p. 3Disposition

Issues in the judgment

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minor

The judgment describes the matter as a first appeal and invokes first appellate obligations although the heading and opening line describe it as a second appeal

minor

Inconsistent figures for the special damages awarded: the submissions refer to Kshs.6,040 while the Court's assessment refers to Kshs.6,500

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, "Alfred Nyangweso Akunga v Joshua Hamisi Ondimu [2018] KECA 243 (KLR)", Case Analysis (2018). Civil Appeal No. 15 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/243/eng@2018-10-11

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