Johntsone Okindas v Mary Jane Malanga [2016] KEELC 105 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's appeal, confirming that a registered proprietor can ask the court to lift a caution when the Land Registrar fails to act.
What this practically means
#Executive summary
#Key legal issues
#Effect of the trial magistrate's failure to consider the Appellant's replying affidavit
The omission did not occasion prejudice as the affidavit's issues were addressed in the Appellant's submissions captured in the ruling
The court reviewed the depositions in the replying affidavit, including the alleged pending suits, and found the Appellant produced no pleadings or orders to support them. The court order in Land Case No.5 of 2009 confirming the Tribunal award in the Respondent's favour, and the Appellant's admission that he had not appealed that award, meant the affidavit's contents could not have changed the outcome.
Proper procedure for removal of cautions
The Respondent, as registered proprietor, properly approached the Land Registrar first and, upon its inaction, properly filed the court application
The court found the Respondent had inherited the parcels through a confirmed grant and held the titles. The statutory procedure under Section 133 of the repealed Registered Land Act, in similar terms to Section 78 of the Land Registration Act, required reference to the Land Registrar; having done so without success, resort to court was proper. Any claim by the Appellant required a substantive suit.
Admission of new evidence on appeal
The police abstract, not before the trial court and dated after the hearing, is struck out as leave for new evidence was not sought
Order 42 Rule 13(4) confines the record of appeal to documents before the lower court. The police abstract was issued on 24th November 2009, after the hearing of the motion and after the ruling date of 11th November 2009, so the trial magistrate could not have considered it. No application had been made under Rule 27 for leave to adduce additional evidence.
Legal principles established
#- On a first appeal the court is required to consider the evidence presented before the lower court and come to its own conclusion
- A registered proprietor may apply to court to lift a caution where the Land Registrar fails to act under the statutory procedure
- Documents not before the trial court cannot be included in the record of appeal without leave under Order 42 Rule 13(4) and Rule 27
Court orders
#- 1.The police abstract is struck out from the record of appeal
- 2.The appeal is dismissed with costs
- On appeal from
- Chief Magistrate's Court, Kisumu
- Kisumu C.M. MISC. Civil Application No.8 of 2009
- Jurisdiction invoked
- First appeal under the Civil Procedure Rules (Order 42) from the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johntsone Okindas v Mary Jane Malanga [2016] KEELC 105 (KLR)", Case Analysis (2016). Kisumu ELC Appeal (memorandum of appeal dated 10th December 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/105/eng@2016-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.