Grace Mmbone Kamidi (Suing as the Personal Representative of Richard Locho Makaya) v Hudson Ambani & 2 others
The bottom line
#Kenya's Court of Appeal ruled that trespass and boundary disputes over registered land belonged to Land Disputes Tribunals, not the High Court, and dismissed the appeal with costs.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over boundary and trespass disputes on registered land under the repealed Registered Land Act and Land Disputes Tribunal Act
The proper forum for a trespass dispute under section 159 of the RLA as read with section 3(1) of the LDTA was the Land Disputes Tribunal, not the High Court; the High Court could only come in at the tail end on points of law from the Appeals Tribunal.
Section 21(2) of the RLA vested boundary determination in the Registrar, but the LDTA amended section 159 of the RLA to expressly recognise the Tribunal's jurisdiction over boundary division, occupation and trespass matters. The determination of boundary disputes having expressly been divested from the courts and the Registrar and vested in the Tribunal by later legislation could only be entertained by the Tribunal. The High Court's role was limited to hearing points of law from the Provincial Appeals Committee.
Whether the High Court correctly found no trespass by the respondents
Yes. The reports of the Land Registrar and District Land Surveyor, unchallenged and never successfully appealed, established that the respondents had not trespassed onto the appellant's land; indeed the appellant was the encroaching party.
The Land Registrar's report in the criminal case found the respondents had not forcibly entered the appellant's parcel, on which basis they were acquitted, and no appeal was lodged. A further report of 26th November 1998 by District Land Surveyor A.O. Akello concluded the appellant had encroached onto the respondents' land. The appellant's appeal against that report's outcome was unaccounted for. The trial judge relied on these expert reports and reached the correct decision.
Legal principles established
#- On a first appeal, the Court of Appeal has a duty to analyze and re-assess the evidence on record and reach its own conclusions, bearing in mind it did not see or hear the witnesses.
- The Court of Appeal will not lightly differ from the findings of fact of a trial judge and will only interfere if they are based on no evidence.
- Under the Registered Land Act (repealed) as read with the Land Disputes Tribunal Act (repealed), disputes concerning boundaries of registered land and trespass to land fell to be determined by the Land Disputes Tribunal, not the High Court.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court of Kenya at Kakamega
- HCCC No. 83 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules; jurisdiction of the High Court over registered land disputes in issue under section 159 of the Registered Land Act (repealed) as read with section 3(1) of the Land Disputes Tribunal Act (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Mmbone Kamidi (Suing as the Personal Representative of Richard Locho Makaya) v Hudson Ambani & 2 others", Case Analysis (2019). Civil Appeal No. 196 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/28/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.