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Court of AppealStruck OutCivil Appeal E015 of 2020· [2022] KECA 803 (KLR)

Murage (As the Administrator of the Estate of Bernard Chiori Murage) v Softwhite Beach Limited & 5 others

Court of Appeal
29 July 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
2,713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a landowner's appeal because he was never a party to the original case and raised claims the trial court never heard.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Malindi against the judgment of Olola J. in the Environment and Land Court dismissing Softwhite Beach Limited's suit, upholding the validity of title to parcel Chembe/Kibabamshe/393, allowing the 2nd and 3rd Respondents' counterclaim and granting a permanent injunction. The Appellant, administrator of the estate of the first registered owner of the parcel, had been refused joinder as an interested party by a ruling of 5th December 2019; he filed a Notice of Appeal against that ruling but withdrew it and instead appealed against the main judgment, raising 22 grounds including cancellation of his title without evidence, prior High Court succession orders transmitting the property to him, and denial of a right to be heard. The Court of Appeal held that it had no jurisdiction to entertain the appeal: the Appellant was not a party to the ELC suit, the issues he raised were not pleaded or canvassed below and amounted to a new cause of action, and his memorandum sought declaratory orders on his title which would require original jurisdiction the Court does not possess. Further, the issues arising from the joinder ruling could not be addressed because the appeal against that ruling had been withdrawn and no Notice of Appeal covered it. The appeal was struck out with costs to the Respondents.

Key legal issues

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01

Whether the Court could entertain the Appellant's claims as a non-party to the ELC suit

Holding

It could not; the Appellant's claims constituted a new cause of action outside the Court's appellate jurisdiction.

Reasoning

The Appellant was not a party in the ELC and the issues he raised were not pleaded, canvassed or addressed in the impugned judgment. His memorandum sought not only to set aside the judgment but declaratory orders on his title, which would require the Court to exercise original jurisdiction it does not possess on appeal.

p. 4
02

Whether the Court could address the joinder ruling of 5th December 2019

Holding

It could not, because the Appellant withdrew the appeal against that ruling.

Reasoning

The Notice of Appeal on record challenges the judgment of 13th May 2020, not the ruling of 5th December 2019 declining joinder. Since the appeal against the ruling was withdrawn, no Notice of Appeal covered it, and the Court lacks jurisdiction over issues arising from it.

p. 5

Legal principles established

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  • The Court of Appeal, being confined to appellate jurisdiction, cannot hear and determine new claims or issues that were not pleaded or urged in the judgment appealed from.
  • The Court of Appeal has no jurisdiction to hear an appeal on a ruling or judgment against which no Notice of Appeal has been filed.

Court orders

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  1. 1.The Appellant's appeal is struck out with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 164(3)
  • Appellate Jurisdiction Actsection 3(1)
  • Land Registration Actsections 24a, 25 and 26
  • Court of Appeal RulesRule 29(1)

Cases cited (7)

  • Benja Properties Limited vs Syedna Mohammed Burhannudin Sahed & 4 Others
    [2015] eKLR

    Relied on by the Appellant on indefeasibility and priority of title; fraud must be expressly pleaded and proved

  • Dr. Joseph Ng'ok Justice Moijo Ole Keiwua and 2 others C.A. No 60 of 1997
    unreported

    Holding reiterated in Benja Properties on title and fraud, cited by the Appellant

  • Communications Commission of Kenya & 4 others vs Royal Media Services limited and 7 others
    [2014] eKLR

    Locus standi of a person who was not a party in the trial court in an appeal, relied on by the 1st Respondent

  • Centre for Rights Education and Awareness & Another vs John Harun Mwau & 6 Others
    [2012] eKLR

    Locus standi of a non-party in an appeal, relied on by the 1st Respondent

  • Selle & Another vs Associated Motor Boat Co. Ltd. & others
    (1968) EA 123

    Duty of a first appellate court to reconsider and evaluate the evidence and draw its own conclusions

  • Standard Chartered Financial Services Limited & 2 others v Manchester Outfitters (Suiting Division) Limited (Now Known As King Woollen Mills Limited & 2 others
    [2016] eKLR

    The Court of Appeal cannot deal with new issues not raised or considered at trial; its jurisdiction is limited to the proceedings and judgment below

  • Nguruman Ltd vs Shompole Group Ranch & Another
    [2014] eKLR

    No jurisdiction to hear an appeal on a ruling or judgment where no Notice of Appeal has been filed

On appeal from
Environment and Land Court at Malindi
Malindi ELC No. 30 of 2011
Jurisdiction invoked
Article 164(3) of the Constitution; section 3(1) of the Appellate Jurisdiction Act

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, "Murage (As the Administrator of the Estate of Bernard Chiori Murage) v Softwhite Beach Limited & 5 others", Case Analysis (2022). Civil Appeal E015 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/803/eng@2022-07-29

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