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ELCDismissedKisumu ELC Appeal (memorandum of appeal dated 10th December 2009)· [2016] KEELC 105 (KLR)

Johntsone Okindas v Mary Jane Malanga [2016] KEELC 105 (KLR)

Environment and Land Court
14 December 2016
1,560 words in judgment
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The bottom line

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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

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Executive summary

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The Appellant appealed against a ruling of the Chief Magistrate's Court at Kisumu in Miscellaneous Civil Application No.8 of 2009, in which the Respondent, as registered proprietor of parcels Kisumu/Marera/2149 and 2399, obtained an order lifting cautions the Appellant had lodged against the parcels. The Appellant advanced five grounds, chiefly that the trial magistrate ignored his replying affidavit, failed to consider pending suits between the parties, and failed to follow the procedure under Section 133 of the repealed Registered Land Act before lifting the cautions. Counsel for the Respondent opposed the appeal, arguing the Respondent had first referred the matter to the Land Registrar, and further that the replying affidavit and a police abstract included in the record of appeal had not been before the lower court, contravening Order 42 Rule 13(4) of the Civil Procedure Rules. The court, exercising first-appeal jurisdiction, found that the Respondent had succeeded in a Land Disputes Tribunal matter whose award was adopted as a court order, that the Appellant had not appealed that award, and that even had the trial magistrate considered the replying affidavit, its contents would not have changed the outcome and no prejudice was occasioned. The court held the Respondent had properly approached the Land Registrar first and, on its inaction, properly invoked the court's jurisdiction. The police abstract, dated after the hearing, was struck out from the record for want of leave under Rule 27. The appeal was dismissed with costs.

Key legal issues

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01

Effect of the trial magistrate's failure to consider the Appellant's replying affidavit

Holding

The omission did not occasion prejudice as the affidavit's issues were addressed in the Appellant's submissions captured in the ruling

Reasoning

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.

p. 2
02

Proper procedure for removal of cautions

Holding

The Respondent, as registered proprietor, properly approached the Land Registrar first and, upon its inaction, properly filed the court application

Reasoning

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.

p. 3
03

Admission of new evidence on appeal

Holding

The police abstract, not before the trial court and dated after the hearing, is struck out as leave for new evidence was not sought

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The police abstract is struck out from the record of appeal
  2. 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

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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, "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.