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ELCStruck OutELC Appeal (Thika) - Memorandum of Appeal filed 16th February 2015, arising from Thika CM ELC No. 10 of 2014· [2019] KEELC 751 (KLR)

Peter Nganga Kimani v Francis Njenga Kamau & another [2019] KEELC 751 (KLR)

Environment and Land Court
25 October 2019
LGL. GACHERU
5,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Appellant, the 1st Defendant before the Chief Magistrate's Court at Thika, appealed against a judgment of 23rd January 2015 in ELC No. 10 of 2014 in which the Plaintiff (1st Respondent) succeeded in his claim for removal of a restriction on land parcel Ruiru/Kiu Block 2 (Githunguri) 1210 and a permanent injunction, and the Appellant's counterclaim was dismissed for want of a verifying affidavit. The dispute concerned competing titles over the same parcel allocated by the 2nd Respondent, Githunguri Constituency Ranching Company Limited, which had resolved that the parties swap parcels. Before determining the appeal, the Court addressed the 1st Respondent's objections that the Record of Appeal was filed out of time and that the Appellant's advocates were not properly on record. The Court held that timeliness of filing goes to jurisdiction, that an appeal comprises both the Memorandum and the Record of Appeal, and that the Record of Appeal filed on 16th August 2017, two years after judgment and without leave or explanation, was not properly on record. The objection on change of advocates was dismissed as a mere procedural technicality under Order 9 Rule 9, which protects advocates' fees. Although the Court, hypothetically re-evaluating the evidence under Section 78 of the Civil Procedure Act, found that the Appellant's first-in-time title was valid and that the conditional swap failed because the 1st Respondent never delivered documentation for parcel 1229, it concluded it lacked jurisdiction over the improperly filed appeal. The appeal was struck out, the trial court's judgment and decree upheld, with no order as to costs.

Key legal issues

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01

Jurisdiction where the Record of Appeal is filed out of time without leave

Holding

The Record of Appeal filed on 16th August 2017, more than two years after the judgment of 23rd January 2015 and without leave, is not properly on record and must be struck out; without a proper Record of Appeal there is no appeal and the Court has no jurisdiction

Reasoning

Section 79G requires appeals from subordinate courts to be filed within 30 days or with leave. The Memorandum of Appeal was filed in time but the Record of Appeal was filed two years later with no explanation for the delay and no application for extension of time. Following Patrick Kiruja Kithinji, timeliness goes to jurisdiction, which must be determined first.

p. 4
02

Whether the Appellant's advocates were improperly on record

Holding

The objection under Order 9 Rule 9 fails as a mere procedural technicality causing no injustice to the 1st Respondent

Reasoning

Order 9 Rule 9 exists to safeguard outgoing advocates' fees from being short-changed by clients after judgment, and concerns outgoing and incoming advocates rather than opposing counsel. Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act require substantive justice without undue regard to technicalities.

p. 5
03

Merits of the competing titles (considered hypothetically)

Holding

The Appellant's title, first in time and unchallenged for fraud, was valid; the alleged swap of parcels failed because the 1st Respondent did not deliver the documentation for parcel 1229, so the conditional swap never took effect

Reasoning

Under Section 24 of the Land Registration Act registration vests absolute ownership, cancellable only for fraud or misrepresentation, neither pleaded nor proved against the Appellant. Applying Hubert L. Martin, the Appellant traced his root of title. The swap was conditional on delivery of parcel 1229, which the 1st Respondent failed to effect.

p. 6

Legal principles established

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  • Whether or not an appeal is filed on time goes to the jurisdiction of the Court; an appeal filed out of time without leave is not curable under Article 159
  • The filing of an appeal includes both the Memorandum of Appeal and the Record of Appeal for the appeal to be complete
  • Where there are two titles over the same land, the court must investigate the root of title; the first in time takes precedence and each party must explain the root of its title
  • The objective of Order 9 Rule 9 is to protect advocates' fees, not to prejudice opposing parties; non-compliance may be overlooked as a procedural technicality

Court orders

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  1. 1.The Record of Appeal filed out of time without leave is struck out
  2. 2.The Appellant's appeal is struck out as the Court lacks jurisdiction to determine it
  3. 3.Judgment and Decree of the trial court is upheld
  4. 4.No order as to costs
On appeal from
Chief Magistrates Court Thika
ELC No. 10 of 2014
Jurisdiction invoked
First appeal to the Environment and Land Court under Section 78 of the Civil Procedure Act; Section 79G on time for filing appeals

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Nganga Kimani v Francis Njenga Kamau & another [2019] KEELC 751 (KLR)", Case Analysis (2019). ELC Appeal (Thika) - Memorandum of Appeal filed 16th February 2015, arising from Thika CM ELC No. 10 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/751/eng@2019-10-25

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