Joshua Nyamache Omasire v Charles Kinanga Maena [2019] KECA 33 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land boundaries can only be changed with the Land Registrar's authority, and you cannot raise new arguments like adverse possession for the first time on appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent's claim was statute barred by limitation/adverse possession
- 2.Whether, between the appellant and the respondent, the disputed portion of 3.3 hectares belonged to the appellant or the respondent
- 3.Whether the alteration of the RIM and issuance of a second title to the appellant in 1995 was lawfully done under sections 19 and 22 of the Registered Land Act (repealed)
Key legal issues
#Whether the 1995 rectification of the RIM and issuance of a second title to the appellant were valid
The rectification was irregular and void because it was done without the Land Registrar's instruction or authorization, without the agreement of the affected neighbouring owner, and contrary to the mandatory procedure in sections 19(1), (2) and 22 of the Registered Land Act (repealed).
Section 19(1) requires a mutation form executed on the Registrar's written instructions with the agreement of every affected person, and section 19(2) requires a new parcel number where a boundary is altered. Section 22 requires notice and a hearing for affected owners before boundaries are fixed. Here the Land Registrar denied any amendment to the RIM, the parcel number was never cancelled, no registration fees or proper stamp duty receipts existed, and the respondent was never involved. The mutation was therefore of no legal effect.
Whether the appellant proved ownership of the disputed 3.3 hectares
The appellant failed to discharge the burden of proof under sections 107 and 109 of the Evidence Act; the Final Area List, the RIM, the respondent's title and the Registrar's determination all showed the disputed portion belonged to the respondent.
The burden lay on the appellant, who alleged an error in measurements. His letter of allotment did not state the acreage, while the Ministry of Lands letter of 29 September 2003, the Final Area List, the surveyor's report of 28 August 2003 and the respondent's title all consistently showed the suit property at 7.6 ha and the respondent's at 15.0 ha. The Registrar's boundary determination was confirmed on appeal to the Chief Land Registrar. The trial Judge's findings therefore warranted no interference.
Whether the adverse possession/limitation argument could be entertained on appeal
No - the issue was not pleaded nor canvassed before the High Court and could not be addressed on appeal.
The appellant argued limitation and adverse possession for the first time on appeal. The court noted that the pleadings contained no claim for adverse possession and no evidence was led on it below. Raising a new issue on appeal without pleadings or factual foundation is impermissible, so the limitation argument was rejected without further enquiry.
Legal principles established
#- There can be no correction to the Registry Index Map without instruction or authorization from the Land Registrar, and every person shown by the register to be affected must agree; a boundary alteration not done in accordance with sections 19 and 22 of the Registered Land Act is irregular and of no effect.
- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and reach its own conclusions, while making due allowance for not having seen or heard the witnesses.
- An issue such as adverse possession that was neither pleaded nor canvassed before the High Court cannot be entertained on appeal.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment dismissing the appeal: adverse possession was not pleaded or canvassed below and could not be entertained on appeal; the burden lay on the appellant to prove error in the measurements, and the evidence (area list, RIM, Registrar's findings) showed the suit property at 7.6 ha; the 1995 mutation and rectification of the RIM were irregular and void for non-compliance with sections 19 and 22 of the Registered Land Act, being done without the Registrar's authority and without notice to the affected neighbour.
From all the foregoing, it is clear that the authenticity of the mutation was questionable.p. 4
Wrote the judgment
Concurred fully with the lead judgment of Mohammed, JA, noting that the learned Judge of the High Court properly considered the issues and reached the correct decision, and that the orders of the Court should be as proposed by Mohammed, JA.
I fully concur with the reasoning of my sister Judge. The Learned Judge of the High Court properly considered the issues and came to the correct decision.p. 4
- On appeal from
- High Court of Kenya at Kisii
- Kisii HCCC No. 153 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules; judgment delivered in accordance with Rule 32(3) of the Court of Appeal Rules
Relief refused
#Declaration that the appellant is the rightful owner of the suit property measuring 10.9 hectares and the disputed 3.3 hectares
The appellant failed to discharge the burden of proving an error in the measurements; overwhelming evidence showed the suit property measured 7.6 ha and the mutation/rectification was irregular.
Adverse possession claim on appeal
Adverse possession was not pleaded in the High Court, nor canvassed there, and cannot be raised for the first time on appeal.
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There can be no correction to the Registry Index Map without instruction or authorization from the Land Registrar, and any person affected by the correction must be in agreement.
This mutation was also not done under the instruction or authorization of the Land Registrar hence the procedure for the registration of the mutation was not regular.
Had the boundaries of the suit property been altered, the RIM and Final Area List would have been amended to reflect the increase in acreage and resultant parcel would have had a new parcel number in accordance with the requirements of sections 19(2) and 22 of the RLA aforesaid.
It is worth noting that the issue of adverse possession was not canvassed before the High Court. Neither was there a claim for adverse possession in the pleadings nor evidence alluding to the appellant's ownership by adverse possession.
Accordingly, this appeal lacks merit and is dismissed with costs.
Issues in the judgment
#The judgment inconsistently dates the second title deed, referring to issuance on 22nd November 1995 in the narrative but stating 'the mutation resulted in the issuance of the title deed on 22 nd November, 2005'.
The coram lists three judges but the judgment records that Githinji, JA had ceased to hold office by retirement, so only two judges signed; the panel composition at hearing versus delivery is unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Nyamache Omasire v Charles Kinanga Maena [2019] KECA 33 (KLR)", Case Analysis (2019). Civil Appeal No. 151 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/33/eng@2019-12-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.