[2024] KEELC 1170 (KLR)

Kenya Wildlife Service v Ole & 2 others (Environment and Land Appeal E004 of 2022) [2024] KEELC 1170 (KLR) (5 March 2024) (Judgment)

Neutral citation: [2024] KEELC 1170 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment and Land Appeal E004 of 2022

CG Mbogo, J

March 5, 2024

Between

Kenya Wildlife Service

Appellant

and

Samuel Kiriampus Ole

1st Respondent

Stanley Timina Ole Koonyo

2nd Respondent

Attorney General

3rd Respondent

(Being an appeal from the judgment and/or decree of the Honourable G.N. Wakahiu (Mr.) in Narok CMCC ELC No. 6 of 2018 delivered on 13th April, 2022) (Previously Nakuru HCCC No. 293 of 2009 & Narok ELC No. 9 of 2007)

Judgment

1. The appellant herein, being dissatisfied with the whole of the judgment delivered on 13th April, 2022 in Narok CMCC ELC No 6 of 2018 by the Hon. Mr. G.N. Wakahiu (Chief Magistrate) appealed to this court vide a memorandum of appeal dated 10th May, 2022 against the said judgment on the following grounds: -1. That the learned trial magistrate erred in law and in fact in awarding the 1st respondent Kshs 1,500,000/- as general damages for loss of amenities and unspecified inconveniences which amount was not only manifestly excessive in the circumstances but was/ is unsubstantiated.2. That the learned trial magistrate erred in law and in fact in rendering a judgment that is incomprehensible and not supported by the evidence of any of the parties on record.3. That the learned trial magistrate erred in law and in fact in disregarding the evidence of the Registrar of Lands whose findings on land boundary disputes is final.4. That the learned trial magistrate erred in law and in fact in framing issues for determination that were inaccurate thereat arriving at a wrong conclusion.5. That until the disposal of the intended appeal or until further orders, the respondents by themselves, their servants, agents or otherwise whomsoever be restrained, stayed or prevented from wasting, damaging, alienating, selling, subdividing or in any other manner disposing of any of the parcels of land comprised in Titles No Cis Mara/ Lemek/ 4260, 4261, 4262, 6933 to 6936 and 7079 and 7222. 6.That upon consideration of the facts raised in this application, this honourable court be pleased to make any other or further orders as may facilitate the just, expeditious, proportionate and affordable resolution of the matter raised herein.7. That the learned trial magistrate erred in law and in fact in failing to make a finding that the evidence adduced by the 1st respondent and his witnesses was in respect of parcel numbers Narok/Siabei/52 and Narok/Siabei/162 and not Narok/Siabei/62. 8.That the learned trial magistrate erred in law and in fact in disregarding the appellant’s evidence that they had been in occupation of land parcel No Narok/Siabei/46 from 1975 and that they had not encroached on the 1st respondent’s parcel No Narok/Siabei/62. 9.That the learned trial magistrate erred in law and in fact in failing to make a finding that the main issue for determination was in respect of boundaries and as a result thereof proceeded to make orders that were incapable of enforcement.10. That the learned trial magistrate erred in law and in fact in awarding the 1st respondent general damages of Kshs 1,500,000/- for loss of amenities and other inconveniences whereas in the body of the judgment at page 20, paragraph 3 in particular the trial court appears to have ordered compensation in the sum of Kshs 1,400,000/- purportedly on account of compulsory acquisition of land CisMara/Siabei/62 purportedly by the appellant and the 2nd and 3rd respondents which payment amounts to double compensation.11. That the learned trial magistrate erred in law and in fact in making a finding that land known as Narok/Siabei/62 was compulsorily acquired when the mandate to compulsorily acquire land for public uses lies with the National Land Commission which was not a party herein.12. That the learned trial magistrate erred in law and in fact in holding the appellant liable jointly and severally when the appellant was on land known as Narok/Siabei/46 at the invitation of the Government of Kenya to serve a public interest.

2. The appellant prays that: -a.That this appeal be allowed.b.That the judgment of the court delivered on 13th April, 2022 be set aside in its entirety.c.That this honourable court be pleased to re-evaluate the evidence on record and give its judgment thereon.d.That this honourable be pleased to find that the appellant is present on land contained in Title Number Narok/Siabei/46 and has not encroached on land number Narok/Siabei/62. e.That the costs of this appeal and of the subordinate court be awarded to the appellant.

3. The memorandum of appeal was canvassed by way of written submissions.

4. On 29th November, 2023, the appellant filed its written submissions dated 20th November, 2023.

5. On grounds 1, 2 and 10 of the memorandum of appeal, the appellant submitted the trial court’s judgment is not only erroneous both in fact and in law, but the same is contradictory, bewildering, confusing and is not supported by the evidence on record or at all. The appellant further submitted that the 1st respondent lied that he had been forced out of his land and had rented a house elsewhere and grazes his cattle elsewhere. They submitted that the 1st respondent was not able to tender documentary evidence to show the rent he has been paying in a rented house for all those alleged years that he claims to have been forced out of his land, and there is no way the 1st respondent would have remained away from his land for over 10 years and not have a receipt for his rental payments be it residential or grazing land.

6. The appellant submitted that the damages awarded was manifestly excessive as it is equivalent to purchasing the said portion of land and the valuation report whose figure is Kshs 1,400,000/- is said to be in respect of only 0. 4 hectares out of the 2. 471 acres that make up the said title. Further, that the improvements upon the disputed 1-acre land cannot be attributed to the 1st respondent and neither has he claimed the same. According to the appellant, the value of the affected portion of land ought to have been at least Kshs 936,000/. Further, they submitted that the award of damages would mean that the 1st respondent has been paid the equivalent value of the affected parcels of land as damages, while he at the same time, remains the registered owner of the parcel of land.

7. On grounds 4,5 and 9 of the memorandum of appeal, the appellant submitted that neither the appellant, nor the 2nd respondent claimed to have acquired any portion of the disputed land. Instead, their evidence was that there was a public need that necessitated their presence within the area and the AIC Siyabei church donated land which they did not acquire as it remains church land.

8. The appellant further submitted that it is strange how the trial court failed to refer to the report by Tom Chepkwesi (PW4) and his evidence. According to the appellant, the trial magistrate ought to have stated why he disagreed with the findings of the said expert witness. Further, they submitted that the trial court’s contention that the defendants should have brought the Inland Church to testify that it gave the said parcel of land to them was erroneous as that was not an issue for dispute. Further, that the church would have had to call a Surveyor to establish its boundaries which is what was significant and had been done in this instance. To buttress on this submission, the appellant relied on the cases of Shadrack Korir v Felix Kipkemoi Simei & 2 others [2020] eKLR and David Murai Kori v The District Land Registrar Nyandarua & another [2019] eKLR.

9. On grounds 3,6,7 and 8 of the memorandum of appeal, the appellant submitted that the 1st respondent’s land as registered measures 2. 6 hectares but on the ground it measures 3. 8 hectares which shows that the 1st respondent is taking a claim on land that is not registered as his. Further, that the evidence tendered by the appellant’s witness proved that they were on land reference Cis-Mara/ Siabei/ 46 and not Cis-Mara/ Siabei/ 62. The appellant questioned why the trial court disregarded the documentary evidence in favour of the 2nd respondent unsubstantiated testimony.

10. The appellant submitted that the trial court failed to consider the appellant’s evidence and that of the 2nd respondent that they had been on the disputed portion of land for a long time, as long as from the year 1975 and that they had not encroached on parcel number Narok/Siabei/62.

11. On ground 11 of the memorandum of appeal, the appellant submitted that it is only the National Land Commission that is constitutionally mandated to compulsorily acquire land for public use after due process and compensation has taken place. Reliance was placed in the case of Ravaspaul Kyalo Mutisya v National Land Commission [2022] eKLR.

12. On ground 12, the appellant submitted that the 2nd respondent was involved in this matter not in his individual capacity but as an officer of the Government of Kenya and therefore the Hon. Attorney General ought to have been the only party before the court not only on behalf of the 2nd respondent but also on its behalf as it presence was due to the invitation of the public. Further, that being an invitee, the appellant should not have been found liable or at all in these matters.

13. On 25th January, 2024, the 1st respondent filed his written submissions dated 23rd January, 2024. The 1st respondent raised five issues for determination as follows: -1. Whether the appellant has encroached in to the 1st respondent’s land title No Narok/Siabei/62. 2.Whether the honourable learned magistrate erred in failing to hold that the issue in dispute was in respect of boundaries and thus reached at a wrong conclusion.3. Whether the honourable learned magistrate erred in law and fact in making a finding that land known as Narok/Siabei/62 was compulsorily acquired when the mandate to acquire land for public use lies with the National Land Commission which was not a party herein.4. Whether the 1st respondent was entitled to the orders sought.5. Who bears the costs of this suit.

14. On the first issue, the 1st respondent submitted that the appellant has no registration documents to prove their alleged invitation letter or minutes or in the least bit a testimony from the invitee, AIC church. The 1st respondent relied on the cases of Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR and Charles Karaithe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare & 5 others [2013] eKLR.

15. The 1st respondent submitted that the report filed in court on 17th July, 2015 was not contested by the appellant and the 2nd respondent. Further, that the report found that the appellant, AP’s and the chief structure are off the fence and that the ground position and the registry index map did not tally. Further, he submitted that based on the two reports mentioned, a case was made out that there was encroachment on his property.

16. On the second issue, the 1st respondent submitted that the matter before the trial court was on the encroachment of his parcel of land and it was imperative for the trial court to determine whether indeed he was the registered owner or not. The 1st respondent relied on the cases of Mulu M’Inyingi v County Government of Meru [2021] eKLR, Keiyian Group Ranch v Samwel Oruta & 9 others [2021] eKLR and Samuel Kamau Macharia v Kenya Commercial Bank & 2 others, Civil Appl. No 2 of 2011.

17. On the third issue, the 1st respondent submitted that the appellant’s witness denied encroaching into the parcel of land, however, the said witness was in agreement with the report filed in court by the District Land Registrar and the District Land Surveyor and produced in court as PEXB No 4. Further, he submitted that there was no evidence adduced by the appellant to counter the evidence of PW3 on the registered map from the Survey of Kenya showing that the three camps were on parcel No 52 whose registered owners were Samuel Kodosi and John Kodosi. The 1st respondent further submitted that there was no evidence by both the appellant and the 2nd respondent that the National Land Commission was ever involved in allocating any parcel of land to the appellant to carry on any activities. Further, that whereas it is not contested that the 1st respondent is the registered owner of LR Narok/Siabei/62, the appellant and the 2nd respondent did not provide evidence of ownership of LR Narok/Siabei/46. To buttress on this submission, the 1st respondent relied on the case of Rutongot Farm Limited v Kenya Forest Service & 3 others [2018] eKLR.

18. On the fourth issue, the 1st respondent submitted in the affirmative and further, that the appellant’s witness did corroborate evidence of the 1st respondent that indeed they had encroached into the suit property. Further, that the office of the Attorney General was sued as the 2nd defendant in the suit before the trial court, which issue, the appellant did not contend before the trial court for the same to now become an issue for determination. It was his submission that this is the first time the appellant has raised this issue before this court, as a ground of appeal. The 1st respondent relied on the case of North Sraffordhire Railway Company v Edge [1920] AC 254.

19. On the fifth issue, the 1st respondent submitted that the issue of costs in this appeal ought to be met by the appellant in the event that the appeal is dismissed. I have considered the grounds of appeal, the written submissions filed by the respondent as well as the authorities cited and, in my view, the issue for determination is whether the appeal has merit.

20. This is a first appeal and the law is that this court is entitled to revisit the evidence on record, evaluate it and arrive at its own conclusion. Often times, an appellate court will not interfere with the findings of fact by the trial court unless they were based on no evidence at all, or were arrived at on a misapprehension of it or the trial court is shown to have acted on wrong principles in arriving at those findings as it was held in Mwanasokoni v Kenya Bus Service Ltd [1982 – 88] I KAR 278.

21. The 1st respondent filed a re-amended plaint dated 16th December, 2020 seeking the following orders: -a.An order to evict the defendants jointly and severally from the plaintiff’s land known as title No Narok/Siabei/62b.A permanent injunction restraining the defendant, his servants, employees and or authorized agents from trespassing in entering depositing building materials, building on (sic) remaining on, or interfering with the plaintiff’s land parcel No Narok/Siabei/62 at Narok in any manner detrimental to him.c.An order to compensate the plaintiff for compulsory acquisition of his parcel, Narok/Siabei/62 by the defendants at the current market value of Kenya Shillings One Million Four Hundred Thousand (Kshs 1,400,000)d.Damages as aforesaid.e.Costs of the suit.f.Any other or further relief as Honourable court may deem fit and just to grant.

22. In the re-amended plaint, the 1st respondent stated that he was the registered owner of the land known as Narok/Siabei/62, which he had been in occupation since the time of registration on 28th October, 1990 and until sometime in the year 2007 when the 2nd respondent, unlawfully and without reasonable cause, entered into his land and built a structure without his consent.

23. The 1st respondent further stated that the 2nd respondent being the area chief, intimidated him and prevented him from enjoying quiet possession and enjoyment of his parcel of land. Further, that he was chased out of his property by the 2nd respondent who used administration police officers to force him out of his property.

24. The 1st respondent further stated that the 2nd respondent continued to develop his suit land and claimed that it belongs to the Government of Kenya and that he is securing the property for public use. That on 23rd February, 2010, the appellant through its workers entered into the suit land and commenced to build residential and office premises. He pleaded particulars of general damages and special damages for rent at Kshs 1,500/- per month from 1st December, 2009, grazing charges at Kshs 800/- per month and Kshs 3000/-.

25. The appellant herein filed its amended statement of defence dated 4th February, 2021. In its defence, the appellant denied the contents of the re-amended plaint and more so the general damages and the special damages as pleaded by the 1st respondent. The appellant further stated that it is rightly and lawfully in occupation of parcel of land known as Narok/Siabei/46 since the year 1975 when the outspost was established on the request of the local community due to the high incidences of the human wildlife conflict in the area. Further, that the parcel of land it occupies is truncated into three portions by two roads. The appellant stated that the portion of land in which it occupies was reserved for Inland Church Mission.

26. The matter proceeded for hearing before the trial court on 21st November, 2018 before Hon. W Juma- (retired). On 30th June, 2020, the matter was taken over by Hon. G. N. Wakahiu (retired) and proceeded with the hearing from where it had reached. The court rendered its judgment on the matter on 13th April, 2022 which is now the subject of appeal.

27. I have perused the record in this file and this being a first appeal, the rule is that, the court re-evaluates the evidence on record and arrives at its own conclusion. However, I have had difficulty in comprehending the proceedings before the lower court. There is no flow of witness testimonies to enable this court at least have an idea of what the suit is all about. The judgment is a mess altogether. The trial court attempted to render its judgment under sub-topics which in my view, did not serve justice to the case. I do agree with the appellant that the judgment as well as the evidence tendered before the trial court is incomprehensible and to re-evaluate the evidence would be a great injustice to the parties.

28. The judgment delivered does not record the evidence of the witnesses as rendered during trial and it would be unfair for this court to attempt to restructure what the witnesses stated during the trial.

29. As such, it would only be fair in the circumstances that the matter be referred back to the magistrates’ court for re-trial on a priority basis. This court notes that this is a very old matter having been filed in the year 2009.

30. This court hereby orders that this matter be remitted back to the Magistrates’ court for hearing and determination of the suit on a priority basis by a learned magistrate other than the trial magistrate who heard the suit and rendered impugned judgement. I make no orders as to costs.Orders accordingly.

DATED, SIGNED & DELIVERED VIA EMAIL this 5TH day of MARCH, 2024. HON. MBOGO C.G.JUDGE5/03/2024. In the presence of:Mr. E. Meyoki – C. A