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Court of AppealDismissedSecond Appeal from Eldoret PMCC suit; Memorandum of Appeal dated 26th June, 2018

Kebenei v Tanui & another (Civil Appeal 77 of 2018) [2024] KECA 972 (KLR)

Court of Appeal of Kenya
26 July 2024
2,395 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a landowner's eviction claim because he hid earlier court cases about the same land, showing dishonesty forfeits equitable relief.

What this practically means

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Executive summary

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This was a second appeal against the judgment of Mwilu, J. (as she then was) delivered on 12th April 2014, which had dismissed the appellant's first appeal from a magistrate's court decision dismissing his trespass suit over land parcel No. Cheptiret/Cheplaskei Block/4/56. The appellant, claiming to be the sole registered owner, had sued the respondents for eviction and a permanent injunction. Both courts below found that the appellant had deliberately failed to disclose substantial previous and parallel litigation over the same land, including suits and succession causes involving his late mother, Regina Chemto, and the respondents' late father, Kimetto Alwala. The first appellate court held that he came to court with soiled hands and disentitled himself of the equitable remedy of injunction. Before the Court of Appeal, the appellant condensed ten grounds into three, abandoning the jurisdiction ground. The respondents conceded that the earlier suit against their late father had abated. The Court, noting that a second appeal is confined to matters of law, declined to disturb the concurrent findings of fact. It held that the respondents, being the beneficiaries named by Regina Chemto in the succession proceedings in respect of the estate of the original owner, and holders of letters of administration over Regina's estate, were not trespassers. Although the record disclosed two competing grants of letters of administration over Regina Chemto's estate, the Court declined to interfere with the succession orders, which remain valid unless set aside, and admonished the parties that no plethora of suits would avail them. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was guilty of non-disclosure of previous proceedings touching on the suit land, disentitling him of equitable relief
  2. 2.Whether the respondents were trespassers on the suit land
  3. 3.Whether the prior suit Eldoret PMCC No. 393/1993 had abated
  4. 4.Whether the respondents' claim was time barred (ground abandoned/not pursued)
  5. 5.The proper scope of a second appeal, being confined to points of law

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; the Court will not disturb concurrent findings of fact of the two courts below unless those findings are based on no evidence

Reasoning

The Court invoked the settled principle from Karingo vs. R and Reuben Karari, holding that its mandate on second appeal is limited to questions of law. The findings that the appellant failed to disclose previous proceedings and came to court with soiled hands were concurrent findings of fact by the magistrate and the High Court judge, which the Court declined to interfere with absent a showing that they were unsupported by evidence.

p. 3
02

Non-disclosure and the clean hands doctrine

Holding

The appellant, having denied in paragraph 10 of the plaint the existence of previous proceedings over the suit land while being aware of them (indeed having filed one himself), came to court with soiled hands and disentitled himself of the equitable remedy of injunction

Reasoning

The record showed multiple prior and parallel proceedings over the same land: Eldoret SMCC 393/93, P&A Cause 160/95, Cause 143/97 and Succession Cause 243/97, the last filed by the appellant himself. The trial magistrate and the first appellate judge both found material non-disclosure. The Court held that the nature of the non-disclosure, whether innocent or deliberate, was irrelevant; once materiality was established the suit could be dismissed on that ground alone.

p. 2
03

Whether the respondents were trespassers

Holding

The respondents were not trespassers; they are the two beneficiaries named by Regina Chemto in the succession proceedings in respect of the estate of Kimetto Alwala, the original owner of the land, and they also hold letters of administration over the estate of Regina Chemto

Reasoning

The Court traced the history of the land: Regina Chemto, the appellant's mother, sued the respondents' father over the land, obtained letters of administration to his estate to the exclusion of the named beneficiaries, and transferred the land to herself. After her death, both the respondents and the appellant obtained letters of administration to her estate. Given that the respondents were named beneficiaries of the estate of the original owner, they could not be characterized as trespassers.

p. 5
04

Validity of the succession orders

Holding

The Court declined to interfere with the orders issued in the succession causes, which remain valid unless and until set aside or varied; the parties were admonished that no plethora of suits will avail them and that the succession causes must be revisited

Reasoning

Although the record revealed the anomaly of two sets of letters of administration issued in respect of the estate of Regina Chemto, the Court held that those orders remain valid until set aside. It noted with disapproval the multiplicity of suits arising from the same subject matter and directed the parties to seek proper orders within the succession proceedings rather than through further litigation over trespass.

p. 5

Legal principles established

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  • A second appeal must be confined to points of law, and the Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence
  • A litigant who seeks an equitable remedy such as an injunction must come to court with clean hands; non-disclosure of material previous proceedings, whether innocent or deliberate, disentitles the litigant of that remedy
  • Grants of letters of administration remain valid orders unless and until set aside and/or varied by a competent court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal to the Court of Appeal confined to matters of law

Relief refused

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The appellant's prayer to set aside the concurrent findings below and obtain eviction of the respondents and a permanent injunction

The respondents are beneficiaries named in the succession proceedings concerning the original owner's estate and are not trespassers; the appellant deliberately failed to disclose previous proceedings over the same land

p. 5

Costs

The appeal is dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 3Scope of second appeal
The appellant sought an injunction. He came to court with soiled hands thereby disentitling himself of the remedy sought.
p. 2Clean hands doctrine
It is in view of the above that we too think the respondents are not trespassers on the land that was hitherto owned by their late father, Kimetto Alwala.
p. 5Trespass
Be that as it may, the order that commends itself to us is that the appeal herein is without merit. It is hereby dismissed with costs to the respondents.
p. 5Final orders and costs

Issues in the judgment

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minor

The judgment inconsistently renders the number of the earlier suit between Regina Chemto and the 1st respondent's father, citing it variously as No.396/193, No.393/1993 and SMCC 393/93

minor

The judgment inconsistently renders the succession cause numbers, referring to Eldoret P & A Cause No.160/95, Cause 143/1997, and Eldoret SPMCC Succession Cause No.393/1993 and No.243 of 1993, and elsewhere 'Eldoret SPMCC Succession Cause No.393/1993, Succession Cause No.160/1995 and Succession Cause No.243 of 1993'

minor

The judgment states the appellant abandoned ground 4 on jurisdiction, but the summarized memorandum lists ten grounds with the jurisdiction ground appearing as item iv in the summary; the numbering of grounds is not entirely consistent

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, "Kebenei v Tanui & another (Civil Appeal 77 of 2018) [2024] KECA 972 (KLR)", Case Analysis (2024). Second Appeal from Eldoret PMCC suit; Memorandum of Appeal dated 26th June, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/972/eng@2024-07-26

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