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Court of AppealStruck OutCivil Appeal 191 of 1996· [1997] KECA 8 (KLR)

Ephantus Nyaga Mbogo v Johnson Nyaga Mbogo

Court of Appeal of Kenya
14 May 1997
RKR. O. KwachGPG. S. PallSBS. E. O. Bosire
0 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a court judgment based on an elders' award unless the decree exceeded or contradicted that award.

What this practically means

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Executive summary

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This is a short interlocutory decision of the Court of Appeal at Nyeri (Kwach, Pall and Bosire, JJ.A) striking out an appeal as incompetent under rule 80 of the Court of Appeal Rules. The underlying dispute concerned land parcel Ngandori/Kirigiti/T. 272, in which the applicant sought a declaration that the land was held in trust for him. The Principal Magistrate at Embu referred the dispute to a panel of elders under section 9 of the Magistrates Courts Act; the elders found the land belonged to the applicant. After the court file mysteriously disappeared and a skeleton file was opened, the magistrate read the award, dismissed the respondent's application to set it aside on the ground that the panel had not considered his evidence, and entered judgment in terms of the award on 15th January 1993. The respondent's appeal to the High Court at Meru (Etyang, J.) was dismissed with costs on 10th May 1996. The respondent then appealed to the Court of Appeal. The court held that under section 9E(2) of the Magistrate's Court Act (Cap 10) no appeal lies from a decree entered in terms of an elders' award except where the decree is in excess of, or not in accordance with, the elders' decision. Since the respondent did not appeal on that basis, no appeal lay and the appeal was incompetently brought. It was struck out with costs, and the applicant also received the costs of the notice of motion. The decision binds subordinate courts and the High Court on the scope of the statutory bar in section 9E(2).

Key legal issues

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01

Whether the appeal was competent under section 9E(2) of the Magistrate's Courts Act

Holding

The appeal was incompetent because the decree followed the elders' award and the respondent did not appeal on the ground that the decree was in excess of, or not in accordance with, the elders' decision.

Reasoning

The land dispute was referred to a panel of elders under section 9 of the Magistrates Courts Act, whose award found the land belonged to the applicant. The magistrate dismissed the application to set aside the award and entered judgment in terms of the award. Section 9E(2) bars appeals from such a decree unless it is in excess of, or not in accordance with, the elders' decision. The respondent's appeal was not so grounded, so no right of appeal existed and the appeal was struck out under rule 80 of the Court of Appeal Rules.

p. 2

Legal principles established

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  • Where judgment has been entered in terms of an elders' award under section 9E(2) of the Magistrate's Courts Act, no appeal lies from the resulting decree except in so far as the decree is in excess of, or not in accordance with, the decision of the elders.
  • An appeal brought in breach of the statutory bar in section 9E(2) is incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal is struck out with costs
  2. 2.The applicant (respondent) will also have the costs of the notice of motion
On appeal from
High Court of Kenya at Meru
Civil Appeal No. 15 of 1993
Jurisdiction invoked
Appeal from the High Court; motion to strike out under rule 80 of the Court of Appeal Rules

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, "Ephantus Nyaga Mbogo v Johnson Nyaga Mbogo", Case Analysis (1997). Civil Appeal 191 of 1996. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.