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ELCDismissedAppeal against ruling in Siaya S.P.M Court Misc. Civil Application No. 35 of 2000· [2019] KEELC 4669 (KLR)

Isaya Ondiek Kandira v Alex Ogony Miguna [2019] KEELC 4669 (KLR)

Environment and Land Court
13 February 2019
SKS. M. Kibunja
2,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed the appeal, confirming magistrates can revive abated suits and substitute deceased parties under Order 24.

What this practically means

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Executive summary

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Isaya Ondiek Kandira appealed against the ruling of M.S. Kimani, R.M. delivered on 13th May 2015 in Siaya S.P.M. Misc. Civil Application No. 35 of 2000, in which the magistrate revived the abated suit, substituted Maurice Omollo Ogony for the late Alex Ogony Miguna as applicant, and directed that the Executive Officer sign the transfer document if the Appellant failed to execute it within 45 days. The Appellant raised seven grounds, condensed into three: want of jurisdiction by the trial magistrate, condemnation of a non-party unheard, and whether parcel East Gem/Uranga/264 formed part of the deceased's estate. The Respondent countered that the ruling was part of the execution process under Section 7(2) of the Land Disputes Tribunal Act, that the tribunal award had been adopted on 18th July 2000 without appeal, that leave to judicially review it had been refused, and that leave to appeal was required and not obtained. The court framed four issues and dismissed the appeal. It held the appeal was confined to the 2015 ruling and could not be used to attack the unappealed tribunal award; the lower court had jurisdiction under Order 24 of the Civil Procedure Rules to revive the suit and substitute parties; the Appellant had participated from the tribunal through the adoption, execution and High Court proceedings and could not claim he was condemned unheard; and the question of whether the parcel belonged to the estate was never determined in the ruling and belongs before the Succession Court. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Scope of the appeal - whether it attacks the tribunal award

Holding

The appeal is confined to the ruling of 13th May 2015 on the motion of 11th November 2014; the tribunal award had been left intact and any attempt to attack it in this appeal is irregular

Reasoning

The application of 11th November 2014 concerned revival of the abated suit and substitution of a deceased party, not the merits of the tribunal award. Leave to judicially review the award had been declined in Kisumu H.C. Misc. Appl. No. 17 of 2004, and leave to appeal the adoption had been rejected for inordinate delay by Tanui J. Attacking the award through this appeal was therefore not supported by the law.

p. 3
02

Jurisdiction of the lower court over the application of 11th November 2014

Holding

The learned trial magistrate acted within jurisdiction in reviving the suit, substituting the deceased applicant's administrator, and directing execution under Section 7(2) of the Land Disputes Tribunal Act and Order 22 Rule 29(1) of the Civil Procedure Rules

Reasoning

The application was part of the execution process contemplated by Section 7(2) of the Land Disputes Tribunal Act, which imports the Civil Procedure Act provisions on execution of decrees. The trial magistrate considered the affidavit evidence and grounds of both sides, and the appellate court found no basis to fault the characterization of the application as mere house-keeping by the estate's administrator.

p. 3
03

Whether the Appellant was a party and was heard

Holding

The Appellant was a party (Defendant/Respondent) in Siaya SPMCC No. 35 of 2000 and participated in proceedings from the tribunal stage through the adoption, execution and High Court proceedings; the natural justice ground fails

Reasoning

The record showed the Appellant was the objector before the Siaya Land Disputes Tribunal and was named as Defendant/Respondent in the adoption suit, though absent when the award was adopted on 18th July 2000. He engaged counsel in the same file from 7th August 2013, filed Kisumu Misc. Appl. No. 1 of 2004 seeking leave to appeal the adoption, and pursued judicial review in 2004.

p. 3
04

Whether East Gem/Uranga/264 formed part of the deceased's estate

Holding

That issue was neither before the trial court nor determined in the impugned ruling and cannot ground this appeal; the appropriate forum is the Succession Court

Reasoning

The motion of 11th November 2014 dealt only with revival and substitution, not with whether the parcel belonged to the estate. The certificate of confirmation of grant was issued in Siaya Succession Cause No. 90 of 2010, showing the succession proceedings were separate. The court pointed the Appellant to the Succession Court for any desired orders.

p. 3

Legal principles established

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  • A magistrate's court has jurisdiction to hear and determine applications for revival of abated suits and substitution of deceased parties under Order 24 of the Civil Procedure Rules
  • A party who participated in proceedings before a tribunal, in adoption proceedings and in the High Court cannot later allege he was not a party to the suit

Court orders

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  1. 1.The appeal against the ruling of 13th May 2015 in Siaya SPM Misc. Appl. No. 35 of 2000 is dismissed
  2. 2.Costs of the appeal awarded to the Respondent

Authorities

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Legislation

  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Section 3(1)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Section 13(3)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Section 7(1)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Section 7(2)
  • Civil Procedure ActSection 75
  • Civil Procedure Rules (2010)Order 24 Rule 3
  • Civil Procedure RulesOrder 22 Rule 29(1)
  • Civil Procedure RulesOrder 24
  • Constitution of KenyaArticle 50(1)

Cases cited (4)

  • Esther Gachambi Mwangi Vs Samwel Mwangi Miri
    [2013] eKLR
  • Owners of Motor Vessel “Lilian S” – v – Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163 (3) of the Constitution, Constitutional Application No. 2 of 2011
    null
  • Margaret Nyawira Kariuki –v- Senior Principal Magistrate Siakago & Another
    [2014] eKLR
On appeal from
Siaya S.P.M Court (Senior Resident Magistrate)
Misc. Civil Application No. 35 of 2000
Jurisdiction invoked
First appeal from the magistrates' court under the Civil Procedure Act; appeal against ruling of 13th May 2015 in Siaya SPM Misc. Appl. No. 35 of 2000

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, "Isaya Ondiek Kandira v Alex Ogony Miguna [2019] KEELC 4669 (KLR)", Case Analysis (2019). Appeal against ruling in Siaya S.P.M Court Misc. Civil Application No. 35 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4669/eng@2019-02-13

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