[2013] KEHC 1373 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HCCA NO. 97 OF 2010

GRACE NALIAKA MAKUTWA........................................ APELLANT

VERSUS

ALBERT SIMIYU WAMALWA................................. RESPONDENT

JUDGMENT

This is an appeal from the decision of the Chief Magistrate Hon. R. Nyakundi in Bungoma CMCC No. 688 of 2009 delivered on 22nd July 2010. The Appellant was the defendant in the case below while the Respondent was the plaintiff. The Appellant listed nine grounds in his Memorandum of Appeal.

Appellant’s submissions:

The Appellant filed written submissions to support his appeal. The submissions were highlighted on 9th July 2013. Mr. Juma argued grounds 1 to 3 together, 4 &6 and 7 & 9 together respectively. On grounds 1 – 3, he submitted the trial court erred in law and fact when he entered judgment for the Respondent based on the Land Registrar’s evidence only.

He submitted that the trial court ignored to take the appellant's evidence. Further that land parcels L.R. No. E. Bukusu/S. Kanduyi/7631 and 6191 are distinct from each other. According to Mr. Juma, at page 45 of the record, the decree gave the Respondent the appellant’s land yet this was purely a boundary matter.

On grounds 4 – 6, the appellant’s Counsel submitted that the Land Registrar was given an order by the court. The Land Registrar during the site visit only carried out observations without physically taking measurements. The Land Registrar's report does not show encroachment hence it was unsafe to rely on his evidence.

They did not make any submissions on grounds 7 – 9. The appellant therefore urged this court to allow the appeal.

Respondent's submissions:

The Respondent opposed the appeal. They filed their written submissions which were orally presented on even date as the appellant's. Mr. Situma submitted that the judgment of the subordinate court was fair and this court should not interfere with it.

The Respondent submitted that section 22 of the Registered Land Act (repealed)conferred jurisdiction on the Registrar to hear boundary disputes. The appellant agreed for the District Land Registrar to visit the site. Both the appellant and Respondent gave evidence before the committee constituted by the Land Registrar and three officers from the district surveys' office.

The Respondent's further submission is that there is a diagram at page 48 showing shaded area as the encroached part. That the Appellant's Counsel cross- examined the Land Registrar on his report. That it is Mr. Ateya who closed the Defendant's case (page 26 of the record) and therefore cannot turn around to say the appellant was not given an opportunity to be heard.

Finally the Respondent submits; the report was based on physical examination. That the finding of the trial Magistrate was based on the report. The appellant ought to have appealed against the report as provided in the Act. He asked the court to dismiss the appeal for lacking in merit with costs to the Respondent.

Issues for Determination:

Did the Magistrate err in relying on the evidence of District land Registrar only.

Did the decree issued award the appellant's land to the Respondent's

Was the report of the land Registrar complete?

(i) Was the Land Registrar's report complete:

It is not in dispute the parties consented to have the District Land Registrar visit the two parcels of land to determine their common boundary as directed by the court on 17th September 2009. The regitrar visited the site and prepared a report. On 22nd June 2010, the land Registrar, George Opondo appeared before the court and produced his report as plaintiff Exh. 1.

He was cross-examined by Mr. Ateya for the defendant (appellant).

He said in response to a question

“The portion in dispute belongs to parcel No. 7631. I measured 1 metre inside 7631. The boundary was interfered with. I used the mutations to identify the boundaries..................... there was no measurement.”

The plaintiff's suit was closed at that point. There was no issue raised as to the incompleteness of the report by the Appellant's Counsel. They did not object to the production of the report. Neither did they appeal against its content as provided in law. The report of the Registrar is at page 46 of the record.

Both parties gave evidence before the Registrar during the hearing of the dispute at the site. The Appellant has not submitted what in their view was not done which ought to have been done by the Registrar when he made the visit. I find the report was complete and in compliance with Sec. 22 (2) of the Registered Land Act (repealed).

(ii) Reliance on evidence of Land Registrar's report only by trial Magistrate:

Once the report of the Registrar was produced, the plaintiff opted to close his case. Mr. Ateya for the appellant also closed the defendant's case. Parties then were given a date for mention for submission as 6th July 2010.

The appellant did not at any time file an application to re-open her case to allow her adduce evidence between 22nd June 2010 when her case was closed and 22nd July 2010 when judgment was delivered. This left the court with evidence of the land registrar only. He found no reasons to depart from the findings of the Land Registrar.

In the case of Francis Onosa Orango vs. Joseph Mato Ngoko & Ambrose Buoma Boruma (2008) eKLR, Musinga J. stated thus “my view of the matter is that the report by J.O. Owuor, District Land Registrar Kisii/Gucha district is like an arbitrator’s award and which I hereby adopt as judgment of this court.”

Although this decision is persuasive on this court, I find no reason to hold a different opinion in applying it here. The trial Magistrate was therefore right to adopt/rely on the report of the Land Registrar to reach his judgment. The Land Registrar after all had given the parties an opportunity to present their case before him. It was the only piece of evidence presented before him.

(iii). Did the decree award the Respondent land?

The trial court ordered the Appellant to “move and remove the brick wall which has encroached upon the plaintiff's land by 1 metre. I enter judgment in principle for plaintiff against the defendant with costs as prayed.” What was prayed in the plaint;

(a). An order as specifically pleaded in paragraph 8 above.”

“Paragraph 8: 'The plaintiff's claim against the defendant is for a declaratory order that he is the sole registered owner of parcel L.R. E. Bukusu/S. Kanduyi/7631 and that a permanent injunction should be issued restraining the defendant whether by herself, her agents/servants or anybody claiming through her from encroaching on or in any other manner howsoever from dealing with L.R. No. E. Bukusu/S. Kanduyi /7631. ”

The extent of encroachment was found to be 1 metre. That is all the court ordered the Appellant to “move and remove the wall. The order as extracted and annexed at page 45 of the record does not reflect the finding of the trial court. The trial court did not award any piece of the appellant's land to the Respondent except direct her to cease encroaching on the Respondent's land by removing the wall.

Conclusion:

I find therefore that the trial Magistrate did not err in fact or law as listed in all the 9 grounds of appeal. He's judgment was fair based on material evidence put before him. The parties chose not to adduce any evidence before him and he cannot be blamed for such decision by the parties. Consequently, this appeal is found as lacking in merit and I proceed to dismiss it with costs to the Respondent.

JUDGMENT DATED, SIGNED and DELIVERED in open court this 5th day of November, 2013.

A. OMOLLO

JUDGE