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ELCPartially AllowedMiscellaneous Cause (Notice of Motion dated 24th July, 2019), Environment and Land Court, Kajiado· [2020] KEELC 2644 (KLR)

Mutuini Farmers Group v Michael M. Macharia [2020] KEELC 2644 (KLR)

Environment and Land Court
23 April 2020
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let a group file an appeal they had already withdrawn, ruling you cannot chase both review and appeal for the same judgment.

What this practically means

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Executive summary

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This was a Notice of Motion dated 24th July 2019 in a miscellaneous cause at the Environment and Land Court, Kajiado, brought by Mutuini Farmers Group. It sought three orders: effecting a consent of change of advocates dated 1st April 2019; enlargement of time to file an appeal against the judgment of E. A. Mbicha, Resident Magistrate, delivered on 14th January 2016 in Kajiado SRMCC No. 157 of 2009 (which had declared the Respondent owner of the suit plot and ordered eviction); and an injunction restraining the Respondent from wasting, damaging or alienating the suit plots pending appeal. The Applicant argued it had been in occupation, had developed the plot and had its allotment validated, and that the trial court ignored inconsistencies in the Respondent's evidence, including that the Respondent was three years old in 1979 when the transfer was executed. The Respondent opposed, citing the withdrawn appeal in ELC No. 1 of 2017, the dismissed review application, and multiple suits between the parties. The court held that the incoming advocates were properly on record, as the miscellaneous cause is a fresh suit and the consent in the related suit could be deemed to apply. However, applying sections 79G and 95 of the Civil Procedure Act and Serephen Nyasani Menge v Rispah Onsase, the court declined to enlarge time, holding that having withdrawn its appeal to pursue review (which was dismissed), the Applicant was abusing the process of the court. Applying Giella v Cassman Brown, it also found no prima facie case for an injunction since the lower court judgment stood and no appeal was on file. Prayers 2 and 3 were dismissed with costs; prayer 1 succeeded.

Key legal issues

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01

Whether the incoming advocates were properly on record without a separate consent for the miscellaneous cause

Holding

The consent executed in a related suit between the same parties could be deemed to apply; in any event, as this miscellaneous cause is a fresh suit, the Applicant's advocates are legally on record.

Reasoning

The court applied Order 9 Rule 9 of the Civil Procedure Rules, which requires an order or consent for change of advocates after judgment. Noting that the erstwhile advocate accepted a consent of change in the related suit (ELC Appeal No. 1 of 2017) between the same parties, and that the miscellaneous cause falls within the definition of a suit, the court held the incoming advocates properly on record.

p. 2
02

Whether time should be enlarged to file an appeal after the appeal was withdrawn and review pursued and dismissed

Holding

No. The Applicant abused the court process by seeking a fresh appeal after exhausting review; the prayer for enlargement of time was declined.

Reasoning

Relying on sections 79G and 95 of the Civil Procedure Act and Serephen Nyasani Menge v Rispah Onsase, the court held that a party cannot apply for review and appeal from the same decree. Having withdrawn its appeal on 30th June 2017 to pursue review, which was dismissed, the Applicant had its day in court and litigation must come to an end.

p. 3
03

Whether an injunction pending appeal should issue against the Respondent

Holding

No. The lower court judgment has not been set aside and no appeal is on file; no prima facie case was established under the Giella v Cassman Brown principles.

Reasoning

The court noted the judgment of the SRM's court remains in force and no appeal has been filed. Since the court below held the Respondent to be the owner of the suit plot, and applying the Giella v Cassman Brown principles, the Applicant failed to establish a prima facie case warranting an injunction.

p. 3

Legal principles established

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  • A party who withdraws an appeal and pursues review of the decree cannot afterwards seek leave to appeal from the same decree; such conduct is an abuse of the process of the court.

Court orders

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  1. 1.The current Applicant's advocates (Ndungu Githuka & Company Advocates) are deemed properly on record in the miscellaneous cause.
  2. 2.Prayer No. 2 (enlargement of time to lodge an appeal) dismissed.
  3. 3.Prayer No. 3 (injunction pending appeal) dismissed.
  4. 4.Prayers 2 and 3 dismissed with costs.

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B(1), 3A, 63(e), 79G, 95
  • Civil Procedure RulesOrder 9 Rule 9(b), Order 41 Rule 1(1)(a), Order 50 Rule 6, Order 51 Rule 1

Cases cited (2)

  • Serephen Nyasani Menge v Rispah Onsase
    [2018] eKLR
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
On appeal from
Senior Resident Magistrate's Court at Kajiado
Civil Suit No. 157 of 2009
Jurisdiction invoked
Sections 1A, 1B(1), 3A, 63(e) and 79G of the Civil Procedure Act; Order 9 Rule 9(b), Order 41 Rule 1(1)(a), Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure 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, "Mutuini Farmers Group v Michael M. Macharia [2020] KEELC 2644 (KLR)", Case Analysis (2020). Miscellaneous Cause (Notice of Motion dated 24th July, 2019), Environment and Land Court, Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2644/eng@2020-04-23

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