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ELCDismissedE&L Appeal No. 10 of 2015· [2017] KEELC 1175 (KLR)

Roda Nanga Muhunji v Joseph Kihundu Makambi [2017] KEELC 1175 (KLR)

Environment and Land Court
11 October 2017
MOM. A. Odeny
455 words in judgment
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The bottom line

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A Kenyan court confirmed that when both a land suit and counterclaim are dismissed, there is no decree left to enforce — the only remedy is appealing the judgment itself.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Eldoret against a ruling of the Kapsabet Principal Magistrates Court dismissing an application dated 4th May 2015 seeking implementation of a decree in Civil Case No. 319 of 2011. The underlying suit had been brought by the respondent as plaintiff seeking a permanent injunction, and the appellant, as defendant, had filed a counterclaim. By a judgment delivered on 22nd July 2014, the magistrate dismissed both the plaintiff's suit and the defendant's counterclaim, with costs. The appellant then applied for implementation of the decree, which the magistrate dismissed, prompting this appeal. The appeal was canvassed by written submissions by Mr. Chemwok for the appellant, the respondent not participating. Justice M. A. Odeny held that the appeal was not against the lower court's judgment but against the ruling on the implementation application, and that since both the suit and the counterclaim had been dismissed with costs, there was nothing left to be implemented - only the question of costs survived. The court noted that the access road, being the gist of the suit, had been dismissed with it, and that any party dissatisfied with the judgment should have appealed against it rather than seek execution of a decree containing no substantive relief. Finding the magistrate's decision correct, the court dismissed the appeal with costs to the respondent on 11th October 2017.

Key legal issues

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01

Whether an application for implementation of the decree could lie where the suit and counterclaim were both dismissed

Holding

The application was properly dismissed because there was nothing left to be implemented; the only surviving issues were the costs of the dismissed suits.

Reasoning

The lower court had dismissed both the plaintiff's suit for a permanent injunction and the defendant's counterclaim, with costs. The access road, which was the gist of the suit, had been dismissed with it. Consequently no substantive decree existed to execute. The magistrate correctly dismissed the application dated 4th May 2015, and the appeal against that ruling had no merit.

p. 2
02

The proper remedy for a party aggrieved by the dismissal of its suit and counterclaim

Holding

The proper course was to appeal against the judgment of the lower court, not to file an application for implementation of the decree.

Reasoning

The court observed that the appeal was directed not at the lower court's judgment but at the ruling dismissing the implementation application. Since the substantive claims had been dismissed, any dissatisfaction lay with the judgment itself, and that could only be addressed through an appeal against the judgment rather than through execution proceedings. The appellant had not done so, so the appeal failed.

p. 2

Legal principles established

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  • Where both a plaintiff's suit and a defendant's counterclaim are dismissed, no decree for substantive relief exists for implementation; the only executable element would be costs.
  • A party dissatisfied with a judgment should appeal against the judgment rather than seek implementation of a decree that contains no substantive relief.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Kapsabet Principal Magistrates Court
Civil Case No. 319 of 2011 (Ruling on application dated 4th May 2015)
Jurisdiction invoked
First appeal against ruling of the Principal Magistrates' Court at Kapsabet (statutory first-appeal jurisdiction of the Environment and Land Court; specific provision not stated in the judgment)

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, "Roda Nanga Muhunji v Joseph Kihundu Makambi [2017] KEELC 1175 (KLR)", Case Analysis (2017). E&L Appeal No. 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1175/eng@2017-10-11

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