Murithii v Murithii & 4 others (Civil Appeal 43 of 2012) [2014] KECA 770 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that families in land disputes cannot stretch constitutional rights claims to cover wrongs that belong in ordinary lawsuits.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's fundamental rights (freedom from torture, cruel, inhuman and degrading treatment; property rights) were infringed by the respondents
No infringement proved. Re-evaluating the evidence, the allegations in annextures FK1 and FK2 were unverified complaints to the police; the water disconnection was by a third party water society; no evidence of physical or psychological abuse endangering life or health.
The Court adopted the definitions of torture and inhuman treatment from ex parte Sitamze and Suresh v Canada. The letters annexed contained only complaints whose veracity was never established. The water disconnection was effected by Murugi Mugumango Water Society, not a party, and the trial judge had restrained interference with the meter. Trespass has its own remedy in an action for trespass. The underlying dispute was really one of inheritance governed by the consent and the 17th May 2012 judgment in Nyeri Civil Appeal No. 77 of 2006.
Whether an appellate court can grant orders (contempt conviction, conservatory orders, costs of other cases) not sought or determined in the court below
It cannot; such relief was misconceived as it was not the subject matter of the appeal.
The Court emphasized its appellate jurisdiction without original jurisdiction in civil, criminal and constitutional matters. Contempt must follow laid-down procedures. The Notice of Motion did not seek the conservatory order for the damaged wall. Costs in Chuka P.M.C.C. No. 27 of 2010 were never before the High Court, guided by Chokolinyo and Maharaj that a wrong judgment contravenes no fundamental right.
Whether the trial judge failed to consider the appellant's submissions, exhibits and annextures
No merit; the ruling shows the annextures FK1, FK2, FK3A, FK5, FK7A and FK8 were considered.
The Court found that the trial judge expressly relied on the annextures, including FK3A concerning membership in the water society, on the basis of which the judge restrained the society from disconnecting the appellant's water supply. The complaint of non-consideration was therefore unfounded.
Legal principles established
#- An appellate court cannot grant relief that was not sought in, or was not the subject matter of, the proceedings before the trial court.
- Contempt conviction and punishment cannot be sought on appeal in proceedings that are not contempt proceedings; there are laid-down procedures for instituting contempt.
- A single incident of trespass to land does not amount to torture or cruel, inhuman or degrading treatment.
- On a first appeal the Court of Appeal must reconsider and re-evaluate the evidence and reach its own conclusions, with due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal dismissed with costs
- 2.Reliefs sought in the memorandum of appeal (conviction for contempt, conservatory order for repair of the house, costs of Chuka P.M.C.C. No. 27 of 2010 and land dispute resolution committee) refused
- 3.Finding affirmed that the respondents did not breach the appellant's fundamental rights and freedoms
- On appeal from
- High Court of Kenya
- Constitutional Application by Notice of Motion dated 4th April 2011 (Makau, J.), ruling dated 19th December 2011
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the High Court on a constitutional (Bill of Rights) application; first appeal re-evaluation of evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithii v Murithii & 4 others (Civil Appeal 43 of 2012) [2014] KECA 770 (KLR)", Case Analysis (2014). Court of Appeal Appeal from High Court Constitutional Application (Notice of Motion dated 4th April 2011); related to Nyeri Civil Appeal No. 77 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/770/eng@2014-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.