Kahungu Karebe v Jonas Muiruri Gitau & 2 others [2019] KEELC 2892 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a magistrate's decision striking out a landowner's trespass suit, ruling that courts cannot end cases based on speculation about property value.
What this practically means
#Executive summary
#Key legal issues
#Speculation on value of suit property as basis for striking out suit
It was wrong for the magistrate to speculate on the probable value of the suit property and strike out the suit in the absence of evidence of value
The issue of the value of the suit property and the pecuniary jurisdiction of the trial court was never canvassed before the trial court. With only the appellant having testified ex-parte and the evidence uncontroverted, there was no evidentiary basis for a finding that the plot was worth more than Kshs 5,000,000. The magistrate therefore proceeded on speculation and wrong principles.
Non-joinder of the City Council of Nairobi
Non-joinder of the Council was not a proper basis for striking out the suit; it was not mandatory for the appellant to join it
The appellant had a right to elect not to sue the City Council because he had no cause of action against it. Striking out a suit for non-joinder of a party against whom no claim is made has no legal foundation; joinder was not mandatory in the circumstances of this claim.
Finding of likelihood of double allocation
The magistrate's holding that double allocations were common was conjectural and unsupported by any ownership documents before the court
The dispute before the court was a specific one concerning a specific plot. No rival set of ownership documents had been presented to the trial court to support a conclusion that the suit property might be subject to double allocation. The finding was pure conjecture and could not support striking out the suit.
Striking out versus dismissal of suit
After an ex-parte hearing on merits, the proper order was dismissal, not striking out; the striking out order was misplaced
Striking out is the order that ensues when a suit is terminated without the court delving into the merits of the parties' substantive cases. Where a case has been heard and determined on merits - as here, where the appellant testified and tendered exhibits - what follows is a dismissal order. The trial court therefore employed the wrong mode of termination.
Irregular service despite advocates on record
Service of a hearing notice on a party directly when a firm of advocates was on record for them was wrong
A notice of appointment by Ondieki & Ondieki Advocates for the defendants was on record since 17/2/2009. Service of the hearing notice ought therefore to have been effected on that firm, not on Felista Muiruri on behalf of all the defendants. The irregular service might explain the respondents' non-attendance at the ex-parte hearing.
Legal principles established
#- A first appellate court must re-evaluate the evidence on record and draw its own conclusions while bearing in mind it did not see or hear the witnesses
- An appellate court will not interfere with findings of fact by the trial court unless they were not based on evidence, were based on misapprehension of evidence, or the trial court proceeded on wrong principles
- A suit is struck out when terminated without delving into the merits; where a case is heard and determined on merits, the order is a dismissal
- Speculating on the value of suit property to found a jurisdictional strike-out without evidence is wrong
- Non-joinder of a party against whom there is no cause of action is not a basis for striking out a suit
Court orders
#- 1.The judgment of the Senior Principal Magistrate delivered on 30/1/2015 in Milimani Commercial Courts CMCCC Number 8378 of 2007 striking out the suit is set aside
- 2.The said suit shall be placed before a different magistrate for hearing afresh
- 3.In the event the value of the suit property has appreciated beyond the pecuniary jurisdiction of the Chief Magistrate Court, any party may initiate a miscellaneous application in the Environment and Land Court for transfer of the suit
- 4.Each party shall bear own costs of the appeal
- On appeal from
- Milimani Commercial Courts (Senior Principal Magistrate's Court)
- CMCCC Number 8378 of 2007
- Jurisdiction invoked
- First appeal transferred to the Environment and Land Court at Nairobi by order of Aburili J dated 7/10/2015 (article 162(2) ELC jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahungu Karebe v Jonas Muiruri Gitau & 2 others [2019] KEELC 2892 (KLR)", Case Analysis (2019). Nairobi ELC Appeal Number 80 of 2015 (originally Nairobi High Court Civil Appeal Number 74 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2892/eng@2019-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.