[2023] KEELC 21201 (KLR)

County Government of Kisumu & 6 others v Otieno (Environment and Land Appeal E035 of 2021) [2023] KEELC 21201 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21201 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment and Land Appeal E035 of 2021

E Asati, J

November 2, 2023

Between

The County Government Of Kisumu

1st Appellant

Thomas Odhiambo Oyieng

2nd Appellant

Owuor Owino

3rd Appellant

Ken Mjewa

4th Appellant

Okech Odidi

5th Appellant

Julius Odhim

6th Appellant

John Onyango

7th Appellant

and

Benard Ochieng Otieno

Respondent

(Being an appeal from the Ruling of Hon. Sang (SPM) given at on 18th May 2021 in Nyando E L suit No. 21 of 2020)

Judgment

1. The appellants in this appeal are the Defendants in Nyando PMC E & L Case No.21 OF 2020 (the suit). They were sued by the Respondent for orders of mandatory injunction, general damages for trespass and costs.

2. Before the suit could be heard and finalized, the Appellant vide the Notice of Preliminary Objection dated 19th April, 2021 challenged the suit on the grounds that;a.the Plaintiff’s suit is statute time barred under the provisions of the Limitation of Actions Act, Cap.22 of the Laws of Kenya on account that the suit has been instituted after the period of limitation has expired as set out in Section 4 and 7 of the Limitation of Actions Act.b.the court lacks the jurisdiction to adjudicate over the dispute by virtue of the provision of sections 18(2) of the Land Registration Act, 2012 which requires land boundary disputes to be first settled by the Land Registrar. Thus, the suit should be struck out.

3. The Preliminary Objection was heard by the trial court which vide its ruling dated 18th May, 2021 dismissed the Preliminary Objection with no order as to costs.

4. Dissatisfied with the ruling, the appellants filed the present appeal. The grounds of appeal as listed in Memorandum of Appeal dated 31st May, 2021 are that;a.the trial Magistrate erred in fact and law in finding and holding that the appellants’ preliminary objection had no merit thus dismissing the appellants’ preliminary objection with costs to the Respondent.b.the trial Magistrate completely misunderstood the evidence before him wrongly and analysed the evidence thus dismissing the appellants’ objection;c.the trial Magistrate erred in law and fact by failing to appreciate the totality of the evidence before him and the submissions made on behalf of the appellants thus reaching to a conclusion that was contrary to the evidence before him.d.The trial Magistrate erred in fact and in law in failing to put into consideration, the fact that the honourable court lacked jurisdiction to adjudicate the suit.e.the trial magistrate erred in law and in fact in disregarding all the evidence that was adduced by the appellant as proof that the Respondent’s suit is time barred as stipulated under the Limitation of Actions Act Cap.22 Laws of Kenya.

5. Directions were given on 23rd May, 2023 that the appeal be canvassed by way of written submissions in compliance with which both parties filed their respective written submissions.

Determination 6. This is a first appeal. The principles guiding handling of a first appeal are well settled. They are that the appellate court has a duty to reconsider the whole evidence produced before the trial court, re-evaluate it and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which the appellate court does not have, of seeing and hearing the parties and their witnesses first hand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] eKLR the court held that the principles upon which a first appellate court proceeds are well settled and stated that:-“Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect".(Also see Selle & another vs Associated Motor Boat Company Ltd & Another (1968) IEA 123)

7. The first issue for determination is whether or not the plaintiff’s suit was time barred. The plaintiff (Respondent herein) had pleaded in paragraph 4 of the plaint that around 10th May, 2020 the 1st Defendant (appellant herein) trespassed onto land parcel Numbers KISUMU/AGORO WEST/1214 and 1153 and commenced illegal sub-divisions of the parcels of land to the other defendants and others for purposes of construction of racks and shops with a view of creating a public market place without permission of the plaintiff and the KORA clan in which the suit lands are situated. The plaintiff proceeded to itemize the particulars of trespass and prayed for the court’s intervention.

8. The appellants vide their statement of defence dated 29th July 2020 denied the Respondent’s claim and indicated that before the hearing of the suit, they were going to raise a preliminary objection that the suit be struck out for being filed by an unqualified person. The record shows that such objection was raised, heard but declined before the preliminary objection the subject of this ruling was mounted.

9. Counsel for the appellants submitted before the subordinate court that the suit was brought to court in the year 2020 which was more than 25 years since the 1st Defendant took charge of the suit land. That the Defendant, (appellant) had been issuing allotment letters since 1989 all the way to 2019. That the 2nd to 7th Defendant had been paying revenue. That the Respondent’s claim was therefore time barred under section 7 of the Limitation of Actions Act.

10. Secondly, it was submitted that Section 18(2) of the Land Registration Act ousts the jurisdiction of the court in boundary disputes. Counsel relied on the case of Willis Ocholla –vs- Ndege (2010) eKLR among other authorities to support this position.That in filing the suit, the Respondent herein invoked the court’s jurisdiction prematurely since the same ought to have first been determined by the Land Registrar.

11. In the leading case of Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd [1969] E.A 696 the case the court held that;“....a Preliminary Objection consists a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may disposed of the suit.Examples are on objection to the jurisdiction of the court or plea of limitation or a submission that the parties are bound by contact giving rise to the suit to refer the dispute to arbitration.’’The court further held that“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’

12. From the foregoing decision, a preliminary objection must be based on pure points of law, must arise from the pleadings, may dispose of the suit if argued as a preliminary point and must be argued on the assumption that all facts pleaded by the opposite party are correct; it cannot succeed if any fact has to be ascertained; or if what is sought is the exercise of the court’s discretion.

13. From the plaint, the date of the cause of action is given to be the year 2020. The issues being raised in the appellant’s submission that the Defendant had taken charge of the suit land more than 25 years ago, that the Defendant had been giving allotment letters since 1989 to 2019, that the 2nd to 7th Defendants had been paying revenue are not matters that are not apparent on the face of the pleadings (plaint and defence). These are matters of evidence that will need to be testified on and proved in a hearing.

14. Secondly, the claim as indicated in the plaint is one of trespass wherein the Appellants are alleged to have unlawfully entered onto the suit lands and began to sub-divide the same for purposes of constructing racks and shops. There is no mention of boundary or boundary dispute in either the plaint or the defence.

15. My finding is that no boundary dispute was disclosed from the pleadings hence the trial court was justified to find that it had jurisdiction to entertain the matter and that the preliminary objection lacked merit.

16. I find no evidence that the trial court misunderstood the evidence before it or that the trial court erred in dismissing the Preliminary Objection. I find no reason to interfere with the findings and decision of the trial Magistrate as none of the grounds of appeal have been proved.

17. For the foregoing reasons, I find no merit in the appeal and herein dismiss it. As the matter is still pending hearing and disposal of the suit before the trial court, let each party bear own costs of the appeal. The lower court file be returned forthwith to the trial court for expeditious hearing and disposal.

Orders accordingly.

JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED THIS 2ND DAY OF NOVEMBER, 2023 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Sala for the Appellants.No appearance for the Respondent.