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ELCPartially AllowedNot stated on the face of the ruling (appeal from Eldoret CMCC E&L Case No. 176 of 2019)· [2020] KEELC 2306 (KLR)

John Kisegu v Joyce Mmbone [2020] KEELC 2306 (KLR)

Environment and Land Court
14 May 2020
MOM. A. Odeny
987 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner appealing a case dismissed for being filed in the wrong county court still got an injunction protecting the land while the dispute is resolved.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) on a notice of motion dated 19th December 2019 by the applicant, who was the plaintiff in Eldoret CMCC E&L Case No. 176 of 2019. His suit there was dismissed after the respondent's preliminary objection on territorial jurisdiction was allowed, and he lodged an appeal. By the motion he sought temporary injunctions restraining the respondent from interfering with the suit land, Kakamega/Chekalini/20162, pending the application and pending the appeal, a stay of execution of the subordinate court's order of 17.12.2019, and costs. Only the applicant filed submissions. He argued irreparable loss, occupation of the land since 2009 and balance of convenience. The respondent, in a replying affidavit, denied selling the land, alleged the sale agreement was a forgery under police investigation, and stated she was ready to defend the suit in the right court in Kakamega. The court applied the principles in Patricia Njeri & 3 others v National Museum of Kenya and Giella v Casman Brown, and Order 42 rule 6(6) of the Civil Procedure Rules. Noting that the lower court's order had advised the parties to file at the Kakamega Environment and Land Court and that no final judgment had been rendered (so no res judicata bar to refiling), the court found the applicant had met the threshold for a temporary injunction and allowed the application as prayed. The parties were encouraged to agree on the way forward, and the matter was set for mention on 28th May 2020 for further directions. No express costs order was made.

Key legal issues

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01

Whether a temporary injunction should issue pending appeal

Holding

The applicant met the threshold and the temporary injunction was allowed as prayed.

Reasoning

The court applied the Patricia Njeri and Giella principles, considered the pending appeal's prospects, noted the applicant had been in occupation since 2009 and would suffer irreparable loss not compensable in damages, and that the balance of convenience favoured him. The court also noted the lower court's order invited the parties to refile at Kakamega ELC without res judicata bars, and the respondent was willing to defend the suit in the right court.

p. 2
02

Effect of dismissal for want of territorial jurisdiction

Holding

Dismissal on a preliminary objection on territorial jurisdiction does not bar refiling of the suit in the court with territorial jurisdiction.

Reasoning

The lower court order specifically advised the parties to file the matter at the Kakamega Environment and Land Court. Since the matter had not been fully adjudicated and no final judgment had been rendered by a competent court, res judicata did not apply, leaving the parties free to litigate afresh in Kakamega.

p. 2

Legal principles established

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  • An application for injunction pending appeal is governed by the principles in Patricia Njeri & 3 others v National Museum of Kenya and the Giella v Casman Brown principles.
  • An order of injunction pending appeal is discretionary and will be exercised against an applicant whose appeal is frivolous.
  • Where a suit is dismissed on a preliminary objection on jurisdiction without full adjudication, the parties are not locked out by res judicata and may file afresh in the court with territorial jurisdiction.

Court orders

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  1. 1.Temporary injunction allowed as prayed, restraining the respondent from threatening to evict, trespassing onto, entering into, ploughing, planting, fencing, constructing, demarcating, developing, cutting trees or in any way dealing or interfering with the suit land pending the hearing and determination of the appeal
  2. 2.Matter to be mentioned on 28th May 2020 for further directions
  3. 3.Parties at liberty to agree on the way forward on how to proceed with the suit either fresh in whichever court

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(6)

Cases cited (2)

  • Patricia Njeri & 3 others v National Museum of Kenya
    [2004] eKLR
  • Giela v Casman Brown Ltd
    1973 EA 358
On appeal from
Eldoret Chief Magistrate's Court (CMCC E&L)
Eldoret CMCC E&L Case No. 176 of 2019
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules - appellate jurisdiction of the High Court to grant a temporary injunction pending appeal from a subordinate court

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, "John Kisegu v Joyce Mmbone [2020] KEELC 2306 (KLR)", Case Analysis (2020). Not stated on the face of the ruling (appeal from Eldoret CMCC E&L Case No. 176 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2306/eng@2020-05-14

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