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JudgmentJOHN IGAMBI OTWERE VS MARTIN IMBWAGA AKOTO12 min read

JOHN IGAMBI OTWERE VS MARTIN IMBWAGA AKOTO

Environment and Land Court at Vihiga Environment and Land Court · · E. ASATI, J

Introduction

A brief background of the appeal herein, as can be gathered from the record of appeal, is that the appellants were the Defendants in VIHIGA PMC MCE&L CASE NO. 11 OF 2019(the suit) and the Respondent the Plaintiff. The subject matter in the suit was a parcel of land known as KAKAMEGA/KEGOYE/1552 (the suit land). The Respondent’s case in the suit was that he was the registered owner of the suit land over which he held a valid title deed having been given the land as a gift by his father one Francis Akoto Lihanda.

His complaint was that the appellants who were beneficiaries of neighboring land parcels known as KAKAMEGA/KEGOYE/1628, 1681 and 1682 had obstructed and /or closed a road of access to the Respondent’s land. He therefore sought for: -

  1. An order directing the Land Registrar Vihiga County to visit the site in dispute in company of a government surveyor and restore the road of access measuring 0.02 Ha. through land parcels KAKAMEGA/KEGOYE/1628 and 1682 or any of those land parcels to land parcel KAKAMEGA/KEGOYE/1552.
  2. An order that upon the road of access being restored a permanent injunction do issue restraining the defendants, their agents, servants, successors or personal representatives and or any other person claiming or acting under their instructions from destroying, closing, blocking, obstructing or in any other manner interfering with the said access road leading to land parcel number KAKAMEGA/KEGOYE/1552 or any other land parcels arising from the said titles.
  3. Costs of or arising from the suit.
  4. Interest on (c) above from date of filing suit until payment in full.
  5. Any other relief the honourable court may deem fit or just to grant.

The record shows that the appellants vide their defence dated 20th August 2019 denied the Respondent’s claim and specifically denied that the alleged road is indicated on the map or has been in existence or in use.  They also denied ever blocking the road of access. They pleaded in the alternative and without prejudice that it was the Respondent and his father who had blocked a public road of access thereby denying the appellants and other neighbours use thereof. They further pleaded that the suit was pre-emptive and full of mischief and that the Respondent sought equity with soiled hands. 

The record shows that the suit was heard before the trial court which, vide the judgment dated 19th June 2023, found that the Respondent’s case had merit and allowed the claim as prayed.

The Appeal

Aggrieved by the judgment, the appellants preferred the present appeal vide the Memorandum of Appeal dated 14th July 2023, on the following grounds:

  1. the learned trial Magistrate erred in law and or fact in allowing the Respondent’s claim as prayed when the same was devoid of merit and against the law and evidence on record as the plaintiff had not proved his case to the standard required in law or at all.
  2. the learned trial Magistrate erred in law and in fact in entertaining and allowing the Respondent’s case yet the same was filed prematurely and in breach of the express provisions of the Land Registration Act and was incompetent, incurably defective, unmaintainable and improperly before court.
  3. the learned trial Magistrate erred in law and in fact by failing to appreciate that it was the Respondent who had closed a public road and his suit was pre-emptive, mischievous and irregular.
  4. the learned trial Magistrate failed to appreciate the existence of a road of access at the site in issue and opening up a second road of access through the appellants’ parcel of land would occasion the appellants irreparable loss, damage and hardship.
  5. The learned trial Magistrate erred in failing to hold that if the Respondent required any further or extra road of access he ought to have sought the same from the person from whom he purchased his parcel of land and further that the Respondent’s case was time or statute barred and incompetent.
  6. the learned trial Magistrate erred in law by considering only the Respondent’s case, evidence and submissions and by totally ignoring and/or disregarding the appellants’ case, evidence and submissions.
  7. the learned trial Magistrate erred by shifting the burden of proof to the appellants and she misapprehended the facts or issues and/or erred by failing to identify and or make a finding on the current issues before her.
  8. the learned trial Magistrate’s judgment was arrived at in a cursory and perfunctory manner and the same is flawed, biased, erroneous and indefensible and has occasioned a miscarriage of justice.

They seek for orders that the appeal be allowed with costs, the judgment of the subordinate court be set aside, vacated and/or quashed and that the judgement be substituted with an order dismissing the Respondent’s claim with costs.

Submissions

Pursuant to directions given on 3/10/2024 the appeal was canvassed by way of written submissions. It was submitted on behalf of the appellants vide the written submissions dated 5th October 2024 that by the court in allowing the Respondent’s claim, purported to intermeddle with the estate of one NATHAN OTWERE MUSIMBILI, deceased.  That land parcel number KAKAMEGA/KEGOYE/1681 was in the name of the deceased.

Counsel relied on the case of Trouistik Union International & Another vs Jane Mbeyu & Another (2008) L KLR(G&F) 730 and the case of Alfred Njau & anothervVs City Council of Nairobi (1982)KAR 229 to submit that the 1st appellant had no locus standi to institute any claim for or against the estate of the deceased. That the 1st appellant lacked the capacity to be sued hence the suit was incompetent.

On behalf of the Respondent, it was submitted vide the written submissions dated 14th November 2024 that the Respondent’s case had merit.  That PW1 testified that it was apparent that there was need for a survey to be conducted at the site and report filed. That a consent order was made for visitation of the site vide the court order dated 11/6/2021.  That the surveyor’s report found an access road leading to the Respondent’s land parcel No.  KAKAMEGA/KEGOYE/1552 which had been blocked by the appellants.

That the appellants did not make any complaint during trial that the case was filed pre-maturely so as to enable the trial court to decide on the same. Counsel submitted further that a party is bound by its pleadings as held in the case of IEBC & another vs Stephen Mutinda Mule & 3 others. That the appellant did not raise any Counterclaim.  It was submitted further that it was not enough for the appellants to state that it was the Respondent who had blocked the road of access and that there was an alternative road of access. That the appellants ought to have produced evidence to prove these allegations.

It was submitted further that there was no material placed before the trial court to the effect that there was an alternative road of access. That the Respondent’s case before the trial court was not for land but for opening of access road against the people he believed to have blocked the road.  That the issue of intermeddling with the estate of the deceased did not arise.  That it is not true that the trial court considered only the Respondent’s case.  That the trial court analyzed the evidence of both parties. That the trial court adopted the issues as framed by the appellants.  That the appellants should not fault the court for this. Counsel relied on the case of Fredrick Otieno Obonyo vs Gilbert Otieno Nyanjom & another (2018) eKLR where the court ordered for implementation of the surveyor’s report on record which report conclusively settled the issues raised in the case as far as blockage of the road of access was concerned.

In response to the submissions filed by the appellants, Counsel for the Respondent submitted that the appellants abandoned the grounds of appeal contained in the Memorandum of Appeal and submitted on grounds not raised.  Counsel submitted that this was contrary to the provisions of Order 42 Rule 4 of the Civil Procedure Rules. That the cases relied upon by the appellants in their submissions should be distinguished from the present case.

Issues for determination

From the record of appeal, the grounds of appeal and the submissions made, the following emerge as the issues for determination: -

  1. Whether or not the appellant has demonstrated/proved the issues raised in the grounds of appeal.
  2. Whether or not the appellants can argue, on appeal, a ground not raised in the Memorandum of appeal.
  3. Costs of the appeal.

Analysis and Determination

This being a first appeal, the court reminds itself of the duty to re-examine and re-analyze the material placed before the trial court with a view to arrive at independent conclusion and thus determine whether the findings of the trial court are consistent with the evidence and the applicable law. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the ourt held that:

“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. 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 allowance in this respect.”

The record of appeal shows that the Respondent’s evidence comprised of the testimony of 4 witnesses and the exhibits they produced. PW1 was the Land Registrar Vihiga. She testified that it is the County Surveyor who has the mandate to open roads of access.  That land parcel Nos KAKAMEGA/KEGOYE/1551 and 1552 were resultant parcels after sub-division of parcel No. KAKMEGA/KEGOYE/642.

PW2 was the County Surveyor Vihiga. He produced a report and testified that the road of access was created as a result of sub-division of land parcel No. KAKAMEGA/KEGOYE/642. That after subdivision, a road measuring 6 meters was opened.  That there is a church and a shop encroaching on 2 meters. that there was marram placed at the center of the road. That the road was not accessible. That the map showed that the road was in existence. He also produced the original map of the area as exhibit.

PW3 was the Respondent. He testified and prayed that he be allowed access to his land.  That the appellants closed the road after the appellants’ father died. PW4 the father of the Respondent testified that after the seller of the land died, the sons of the seller decided to close the road.

On behalf of the appellants, the 1st appellant testified and stated that his father sold the land to PW3. That there was no agreement for giving of a road of access.  That the Respondent ought to have asked the seller for a road. On cross -examination in reference to the mutation that created the Respondent’s land and land parcel No. 1551, the 1st appellant stated that there is a road shown on the mutation form.  That he did not know if the road was blocked.  The 2nd appellant testified as DW2. She stated that she bought the land in the year 2009. That they went to the ground with the owner and surveyor, that they measured and showed her some allowance of 4m leading to the owner’s land. That she has built residential house and shops on the 4 meters which the owner used. She testified that she cannot give the road as she had built.

In reference to the mutation, she stated that she did not know the road shown on the document.

The substantive question that was before the trial court for determination was whether or not a road of access existed as claimed by the Respondent and whether or not the same had been blocked and if yes, by who?

This question is one that could primarily be answered by documentary evidence and expert’s evidence. PW1 and PW2 were the Land Registrar and the Land Surveyor respectively. PW2 produced a report of a visit to the disputed area and original map. The report showed that a road of access existed but that the same had been blocked. The report dated 21st July is on page 34 of the record of appeal.  It read in part as follows;

‘…..the County Surveyor in company of the Land Registrar visited the site on 6th July 2018, and can report as follows:-

That the bone of contention is an access road which was created as a result of sub-division of land parcel Kakamega/Kegoye/642 which resulted in Kakamega/Kegoye/1551 and 1552.

That the created road was to serve the new parcel Kakamega/Kegoye/1552 and its width is 6 metres.

That the land parcel Kakamega /Kegoye/1551 was later sub-divided into parcel number Kakamega/Kegoye/1627 and 1628.

Upon measuring, it was realized that the said road is partly blocked by the erected buildings indicated as a shop (Located in 1628) and church located in 1627) in the indicated diagram. There is also some marram placed in the middle of the said road by the church members which needed to be removed.

The extent of the encroachment by the said structures is approximately two (2) meters as shown in the diagram.”

No other evidence was produced to contradict this report by the Land Surveyor and Land Registrar.

The Mutation that sub-divided the original parcel was also produced by the Respondent.  The proceedings show that when the 1st appellant was shown the mutation on cross-examination he stated that the road of access existed on the mutation form.

I find that on the basis of the evidence placed before the trial court, the question as to whether there was a road of access created at the time of sub-division of the original parcel so as to create land parcel numbers KAKAMEGA/KEGOYE/1551 and 1552 was answered in the affirmative.  I also find that it was proved before the trial court that the road had been blocked and needed to be re-opened.

Having analyzed the evidence, I find that the trial Magistrate did not err in her findings and ultimate decision. I further find that the grounds of appeal presented in the Memorandum of Appeal have not been proved.

Further, it is clear that the appellants have not in this appeal addressed the grounds of appeal raised in the Memorandum of Appeal in their submissions dated 5/10/2024 or at all, instead they chose to argue totally new grounds namely; that the 1st appellant lacked capacity to be sued and that for that reason the suit was fatally defective and incompetent. As correctly submitted on behalf of the Respondent, unless with leave of the court, the appellants are precluded from urging new grounds of appeal which were not raised in the Memorandum of Appeal. No such leave was sought and obtained. Order 42 Rule 4 of the Civil procedure Rules 2010, which provides for grounds which may be taken on appeal states that

“the appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule.

Provided the High Court shall not rest its decision on any ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.”

I find no reason to interfere with the findings and decision of the trial court. I find that the appeal lacks merit and hereby dismiss it. Costs to the Respondent.

Orders accordingly.

Judgement dated and signed at Vihiga and delivered this 16th day of January, 2025, virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi: Court Assistant.

Wekesa for the appellants.                  

Shihemi for the Respondent.

    JOHN IGAMBI OTWERE VS MARTIN IMBWAGA AKOTO JOHN IGAMBI OTWERE VS MARTIN IMBWAGA AKOTO