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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 106 (KLR)

Peter Mahinda Kanyora & 2 others v Julius Mugo Gachagua (Sued as the Administrator/Legal Representative of the Estate of Mary Mweru Achagua, the Administrator of the Estate of John Gachagua Kibiru) [2020] KEELC 106 (KLR)

Environment and Land Court
17 December 2020
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled it cannot withdraw a party's appeal notice — only the Court of Appeal can do that under Rule 83.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru in which the court had earlier, on 17th April 2020, found the Respondent/Defendant Julius Mugo Gachagua in contempt of orders of 10th December 2012 and 27th September 2017 restraining the parties from alienating, transferring or disposing of the suit land LR No. 10422/9 pending the hearing of the suit. Sentencing was reserved owing to the Covid-19 pandemic. The Respondent obtained a conditional stay of execution on 8th June 2020 pending an intended appeal, on condition that any further contempt would automatically discharge the stay. The Applicants, through the Vice Chairman of the Plaintiff, David Komu Kabui, filed two chamber summons dated 28th August 2020 seeking that the Respondent's Notice of Appeal be marked as withdrawn under Rule 83 of the Court of Appeal Rules and that the Respondent be sentenced immediately. The Respondent raised a preliminary objection dated 22nd September 2020 contending that the court lacked jurisdiction because Rule 83 applications lie only in the Court of Appeal. Applying the Mukisa Biscuits definition of a preliminary objection and Court of Appeal authorities on Rule 83, including John Mutai Mwangi and Bamburi Cement, M.C. Oundo J held that the power to deem a Notice of Appeal withdrawn under Rule 83 belongs to the Court of Appeal alone, 'Court' being so defined in the Rules. The preliminary objection was upheld, the Applicants' applications were dismissed, and costs were ordered to abide by the outcome of the Appeal.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction under Rule 83 of the Court of Appeal Rules to mark a Notice of Appeal as withdrawn

Holding

It does not; the power under Rule 83 is exercisable only by the Court of Appeal

Reasoning

The court considered Rule 83 of the Court of Appeal Rules and the definition of 'Court' in Rule 2 of those Rules, which confines the meaning to the Court of Appeal. Relying on Court of Appeal decisions in John Mutai Mwangi and Bamburi Cement, it held that the deeming/withdrawal power under Rule 83 is a case-management tool of the appellate court itself. Accordingly, the ELC lacked jurisdiction over the applications, and the preliminary objection succeeded.

p. 3
02

The nature of a preliminary objection

Holding

A preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit

Reasoning

The court restated the classic Mukisa Biscuits definition, and drew on Quick Enterprises and Avtar Singh Bhamra to affirm that a preliminary objection must be founded on pure points of law without requiring ascertainment of facts from outside the pleadings. An objection to jurisdiction squarely falls within that definition, so the Respondent's objection was properly before the court for determination.

p. 2

Legal principles established

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  • Rule 83 of the Court of Appeal Rules vests jurisdiction to deem a Notice of Appeal withdrawn in the Court of Appeal alone, and not in the High Court or Environment and Land Court
  • A preliminary objection must be a pure point of law capable of disposing of the matter without ascertaining facts outside the pleadings

Court orders

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  1. 1.The Preliminary Objection dated 22nd September 2020 is upheld
  2. 2.The Applicants' Applications dated 28th August 2020 are dismissed for want of jurisdiction
  3. 3.Costs to abide by the outcome of the Appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 2 (Interpretation clause)
  • Court of Appeal Rules, 2010Section 2 (definition of 'Court')
  • Court of Appeal RulesRule 81
  • Civil Procedure ActSections 3A and 63(c), (e)
  • High Court Practice and Procedure RulesSections 3A, 63(c), (e)

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Quick Enterprises Ltd. vs. Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • John Mutai Mwangi & 26 others v Mwenja Ngure & 4 others
    [2016] eKLR
  • Bamburi Cement Ltd v Evanson Mwawasi Mwadime
    [2018] eKLR
  • Quicklubes E. A. Limited vs. Kenya Railways Corporation
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land LR No. 10422/9; the court held it lacked jurisdiction over the applications by virtue of Rule 83 of the Court of Appeal Rules

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, "Peter Mahinda Kanyora & 2 others v Julius Mugo Gachagua (Sued as the Administrator/Legal Representative of the Estate of Mary Mweru Achagua, the Administrator of the Estate of John Gachagua Kibiru) [2020] KEELC 106 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/106/eng@2020-12-17

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