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ELCStruck OutNot stated in judgment (appeal against SPMCC No. 267 of 2010, Kerugoya Law Courts)· [2021] KEELC 19 (KLR)

Nancy Wangari Kinyua v Rose Wambui & another [2021] KEELC 19 (KLR)

Environment and Land Court
3 December 2021
ECE.C. CHERONO
1,773 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's appeal because it was defective and challenged issues already decided, confirming review and appeal cannot be pursued together.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Kerugoya against the judgment of Senior Principal Magistrate H.N. Ndung'u in SPMCC No. 267 of 2010 (Nancy Wangari Kinyua v Rose Wambui & Another) delivered on 19th January 2012, plus related review proceedings before Hon. Soita. The appellant, Nancy Wangari Kinyua, had originally sought subdivision of land parcel Mwerua/Gitaku/827, jointly registered between herself, Rose Wambui and Catherine Njeri, into three equal portions. The magistrate dismissed her claim on the basis that she had sold one acre of the land. That decision was overturned by Justice B. Olao in ELCA No. 47 of 2014, who found the magistrate erred in holding the appellant had sold land, though he ruled joint ownership cannot be severed without consent of the joint owners. Thereafter, the respondent applied on 5th July 2017 for removal of the appellant's name from the joint title, which was allowed on 19th October 2017; the appellant's application for review dated 24th October 2017 was disallowed. The appellant's memorandum of appeal before the ELC was undated and incomplete, and her submissions were directed at the review decision rather than the grounds in the memorandum. The respondents argued the memorandum did not conform to Order 42 rule 1 and should be struck out. Justice E.C. Cherono agreed, holding that the issues appealed and submitted upon had already been decided, that no memorandum of appeal lay against Hon. Soita's review decision, and that a party cannot apply for review and appeal from the same decree or order, following Serephen Nyasani Menge v Rispah Onsase [2018] eKLR. The memorandum of appeal was struck out with costs to the respondents.

Key legal issues

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Whether the undated and incomplete memorandum of appeal, which did not match the appellant's submissions, should be struck out

Holding

The memorandum of appeal was struck out because it did not conform to Order 42 rule 1, and the issues raised had already been decided; the appellant's real grievance was against Hon. Soita's review decision, against which no memorandum of appeal existed in the record

Reasoning

The court found the memorandum of appeal undated and incomplete, with grounds directed at a 2012 decision already overturned on appeal by Justice B. Olao. The appellant's submissions instead attacked the magistrate's refusal to review the orders removing her name from the title, but there was no memorandum of appeal against that review decision, and a party cannot appeal and seek review of the same order.

p. 3

Legal principles established

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  • A party cannot apply for review and appeal from the same decree or order
  • A memorandum of appeal must conform to Order 42 rule 1 of the Civil Procedure Rules, setting out concise, numbered grounds without argument or narrative

Court orders

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  1. 1.The memorandum of appeal be struck out
  2. 2.Costs to be awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 1(1)(2)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 45(6)

Cases cited (1)

  • Serephen Nyasani Menge Versus Rispah Onsase
    [2018] eKLR
On appeal from
Senior Principal Magistrate's Court, Kerugoya
SPMCC No. 267 of 2010
Jurisdiction invoked
First appeal to the High Court/ELC under Order 42 of the Civil Procedure Rules from the magistrates' 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, "Nancy Wangari Kinyua v Rose Wambui & another [2021] KEELC 19 (KLR)", Case Analysis (2021). Not stated in judgment (appeal against SPMCC No. 267 of 2010, Kerugoya Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/19/eng@2021-12-31

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