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ELCDismissedBondo PMCC 15 of 2012 (Appeal from ruling of 6th July 2012)· [2017] KEELC 3663 (KLR)

Thadeus Odawa Oyombe v Thadeus Odawa Oyombe [2017] KEELC 3663 (KLR)

Environment and Land Court
18 January 2017
SKS.M. Kibunja
1,301 words in judgment
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The bottom line

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A Kenyan court confirmed that if interlocutory judgment has been entered against you, you must first have it set aside before you can challenge the court's jurisdiction.

What this practically means

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Executive summary

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The Appellant, who was the Defendant in Bondo SRM CC No.15 of 2012, a suit based on alleged breach of a contract for sale of land and trespass, appealed against a ruling of 6th July 2012 in which the learned trial magistrate struck out his notice of preliminary objection on jurisdiction. The preliminary objection contended that the magistrate's court lacked jurisdiction by virtue of Article 162(2)(b) of the Constitution as read with Section 13(2) of the Environment and Land Court Act, 2011 and Gazette Notice No.1617. The trial magistrate, relying on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, held that the Appellant, having entered appearance but failed to file a defence, was deemed to have admitted the plaint's facts; interlocutory judgment had been entered on 27th April 2012, and the Appellant had to first apply to set it aside before obtaining audience to prosecute the preliminary objection, which was struck out as premature with costs to the Plaintiff. S.M. Kibunja, Judge of the Environment and Land Court, found that the trial magistrate made no merit finding on jurisdiction and that all four grounds of appeal had no relevance to the ruling. The court found no fault in the trial magistrate's position and advised the Appellant to first seek vacation of the interlocutory judgment before raising jurisdiction. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the preliminary objection on jurisdiction could be entertained after interlocutory judgment had been entered

Holding

The trial magistrate did not err in striking out the preliminary objection as premature

Reasoning

The Appellant entered appearance but failed to file a defence, and interlocutory judgment was entered on 27th April 2012. The trial magistrate struck out the preliminary objection without a merit finding on jurisdiction, proposing instead that the Appellant first apply to set aside the interlocutory judgment. The appellate court found no fault in this approach, since a defendant against whom judgment is entered has limited participation.

p. 3
02

Whether the grounds of appeal were relevant to the ruling appealed against

Holding

The grounds were rejected as having no relevance

Reasoning

All four grounds concerned jurisdiction of the trial magistrate and interpretation of authorities on the preliminary objection. Since the ruling struck out the preliminary objection as premature without deciding jurisdiction on the merits, the grounds did not arise from the decision appealed against.

p. 3

Legal principles established

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  • A party against whom interlocutory judgment has been entered must first have that judgment set aside before being granted audience to raise a preliminary objection

Court orders

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  1. 1.The four grounds of the memorandum of appeal are rejected
  2. 2.The Appellant's appeal is dismissed with costs
  3. 3.The Appellant is to first seek vacation of the interlocutory judgment before raising the issue of jurisdiction in the trial court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159
  • Environment and Land Court Act No.19 of 2011Section 13(2)
  • Chief Justice Practice Directions on proceedings relating to the Environment and the use and occupation of, and title to landGazette Notice No.1617 dated 9th February 2012

Cases cited (1)

  • Mukisa Biscuits Manufacturing Co. Ltd –V– West End Distributors Ltd
    {1969} E.A 696
On appeal from
Senior Resident Magistrate's Court, Bondo
Bondo SRM CC No.15 of 2012
Jurisdiction invoked
First appeal to the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011

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, "Thadeus Odawa Oyombe v Thadeus Odawa Oyombe [2017] KEELC 3663 (KLR)", Case Analysis (2017). Bondo PMCC 15 of 2012 (Appeal from ruling of 6th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3663/eng@2017-01-18

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