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ELCOtherELC Appeal (Machakos) – Memorandum of Appeal filed 24th December 2012· [2020] KEELC 891 (KLR)

Benjamin Nzyoki Mbindyo & 2 others v James Nzeki Kilonzo [2020] KEELC 891 (KLR)

Environment and Land Court
23 October 2020
OAO.A. Angote
2,273 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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When land falls under adjudication, Kenyan courts lose jurisdiction, and a party forced to withdraw their case won't be punished with legal costs.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O.A. Angote, J) dealt solely with costs after the Appellants withdrew their Appeal on 18th February 2020. The Appeal, lodged out of time against a decision of the Eastern Province Land Disputes Appeals Committee in Appeal No. 41 of 2005, was allowed to proceed by an order of 7th December 2012, and a Memorandum of Appeal was filed on 24th December 2012. At a mention on 26th September 2019, the Appellants' counsel disclosed that the suit land in Musalala sub-location had been declared an adjudication section by a letter of the Land Adjudication Officer, Makueni, dated 9th June 2016 issued under section 5 of the Land Adjudication Act, ousting the court's jurisdiction. The Respondent sought costs, relying on section 27 of the Civil Procedure Act, Order 25 Rules 1 and 2 of the Civil Procedure Rules and authorities on costs following the event, including Fredrick Nzioki Kamunzyu & Another v Mark Mbuvi Maundu, arguing that a withdrawing party should ordinarily pay costs absent misconduct by the other side. The Appellants relied on section 30 of the Land Adjudication Act and Kitisu Julius Sile, submitting the matter was discontinued by operation of law. The court found no evidence that the adjudication letter was forged or that the land fell outside the section, held that section 30 mandatorily required discontinuance, and that the Appellants could not be penalized for a jurisdictional ouster they could not have foreseen. The Appeal was marked as withdrawn with no order as to costs.

Key legal issues

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01

Effect of the declaration of an adjudication section on pending court proceedings

Holding

Pending proceedings concerning land in an adjudication section must be discontinued under the mandatory provisions of section 30 of the Land Adjudication Act

Reasoning

The court noted a letter dated 9th June 2016 issued under section 5 of the Land Adjudication Act declaring parts of Musalala Sub-location an Adjudication Section. There was no evidence the letter was a forgery or that the suit property fell outside the section. Section 30(1) and (2) ousts the court's jurisdiction and mandates discontinuance of proceedings begun before publication of the notice, unless the adjudication officer directs otherwise.

p. 3
02

Whether costs should follow the event where an appeal is withdrawn because jurisdiction has been ousted

Holding

Costs are discretionary under section 27 of the Civil Procedure Act; although costs follow the event, the Appellants should not bear costs as the withdrawal was caused by an ouster of jurisdiction they could not have foreseen

Reasoning

Section 27 gives the court full discretion over costs notwithstanding lack of jurisdiction, with costs following the event unless the court orders otherwise for good reason. Here the court had good reason to depart from the general rule: the declaration of the adjudication section on 9th June 2016 was not of the Appellants' making and the dispute would be resolved under the Land Adjudication Act.

p. 3

Legal principles established

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  • Where a suit or appeal is discontinued by operation of law under section 30 of the Land Adjudication Act, the party withdrawing cannot be penalized with costs merely because the suit was withdrawn
  • Civil proceedings concerning an interest in land in an adjudication section may not be instituted or entertained without the written consent of the adjudication officer until the adjudication register becomes final

Court orders

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  1. 1.The Appeal be and is hereby marked as withdrawn with no order as to costs

Authorities

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Legislation

  • The Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 25 Rule 1 & 2
  • Land Adjudication ActSection 5
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 30(1) and (2)

Cases cited (6)

  • Peter Muriuki Ngure v Equity Bank (K) Ltd
    [2018] eKLR
  • Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Co-operative Society
    (2014) eKLR, JR Application NO. 6 of 2014
  • Harold vs Smith
    1860, 5H. & N. 381
  • Zesta Engineering Ltd vs Cloutier
    (2002) O.J.No. 4495(C.A.) (QL
  • Fredrick Nzioki Kamunzyu & Another v Mark Mbuvi Maundu & 2 Others
    [2019] eKLR
  • Kitisu Julius Sile & 60 Others vs. Chairperson Oloirien Adjudication Section B Committee & 3 others
    (2016) eKLR
On appeal from
Eastern Province Land Disputes Appeals Committee
Appeal No. 41 of 2005
Jurisdiction invoked
Appeal from the Eastern Province Land Disputes Appeals Committee; costs dealt with under section 27 of the Civil Procedure Act

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, "Benjamin Nzyoki Mbindyo & 2 others v James Nzeki Kilonzo [2020] KEELC 891 (KLR)", Case Analysis (2020). ELC Appeal (Machakos) – Memorandum of Appeal filed 24th December 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/891/eng@2020-10-23

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