Nthusi Mwonewa (Deceased) v Makau Mwonewa (Environment and Land Appeal 91 of 2005) [2019] KEELC 1916 (KLR)
The bottom line
#A Kenyan court confirmed that once a land appeal is struck out, no orders can be made in it; the winner must file a fresh suit.
What this practically means
#Executive summary
#Key legal issues
#Whether orders sought in the Notice of Motion dated 10th February 2014 could be granted in a struck-out appeal
The application was dismissed because the appeal was struck out and no longer existed as a suit
The court found that the appeal had been struck out suo moto by Lenaola J. on 3rd December 2009 as incompetent, the Minister's decision under Section 29 of the Land Adjudication Act being final. With no subsisting suit, substitution of the deceased appellant by legal representatives and execution of the Minister's orders were impossible; the applicant's only remaining recourse was costs of the struck-out suit or an independent suit.
Whether the named persons could be made parties as executors de son tort
The issue of substitution could not arise where the suit had been struck out
The court held that the question of substituting the deceased appellant by his legal representatives could not arise in a suit that no longer existed. The objection that the named persons were not legal representatives and had not intermeddled was superseded by the more fundamental point that there were no proceedings to which they could be joined.
Legal principles established
#- Under Section 29 of the Land Adjudication Act, the Minister's decision is final and no appeal lies to the High Court or any other court or legal authority
- Once an appeal is struck out, no execution or substitution of parties can occur on it; the decree-holder must file an independent suit subject to limitation of time
Court orders
#- 1.The Application dated 10th February, 2014 is dismissed with no order as to costs
- 2.For avoidance of doubt, the Appeal stands struck out as ordered by the court on 3rd December, 2009
- On appeal from
- District Commissioner Machakos (Minister's Appeal No. 29 of 1997)
- 29 of 1997
- Jurisdiction invoked
- Section 29 of the Land Adjudication Act (as invoked by Lenaola J. in striking out the appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthusi Mwonewa (Deceased) v Makau Mwonewa (Environment and Land Appeal 91 of 2005) [2019] KEELC 1916 (KLR)", Case Analysis (2019). Appeal in respect of Minister's Land Dispute Appeal No. 29 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1916/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.