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ELCDismissedNot stated in the judgment (Appeal arising from Thika CMCC No. 1739 of 2005)· [2021] KEELC 472 (KLR)

Harun Njenga Mungai & 2 others v James Mungai Ngurimu [2021] KEELC 472 (KLR)

Environment and Land Court
2 December 2021
5,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that it hears land appeals nationwide and refused to undo a judgment or grant orders already given.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Milimani), delivered on 2nd December 2021 by Oguttu Mboya J, determined two competing applications arising from an appeal decided on 25th January 2018, which had succeeded against the Respondent in an appeal from Thika CMCC No. 1739 of 2005. The Respondent, acting through a guardian ad litem, sought by an application dated 14th April 2021 to set aside the 2018 judgment, contending that his former advocate failed to file a defence or notify him of hearing dates, and seeking leave to defend the suit, stay of execution and reinstatement of cautions over Kiganjo/Kiamwangi/854 and 855. The Appellants, by an application dated 28th June 2021, sought amalgamation of the two parcels and authority for the Deputy Registrar to sign subdivision and transfer documents. The court framed four issues. On jurisdiction, it held the ELC is one court with countrywide jurisdiction and that registries are mere places of sitting; further, any jurisdictional objection should have been raised at the directions stage under Order 42 rule 13, and none was. On the set-aside prayer, the court found the 2018 judgment was a considered appellate judgment, not a default one, and that the Respondent had in fact filed a defence, testified and called four witnesses in the subordinate court, so the application was misconceived. On the Appellants' application, the court held that parties are bound by their pleadings, that granting the orders would amount to sitting on appeal over a court of equal jurisdiction, and that similar signing orders had already been granted on 13th April 2021, rendering the application an abuse of process. Both applications were dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the ELC at Nairobi to hear an appeal from Thika

Holding

The objection is misguided; the ELC is a single national court and registries are mere places of trial

Reasoning

The court held that at filing, the Nairobi Appeal Registry served the Thika District Registry. The ELC, created under Article 162(2)(b) and Section 13 of the ELC Act, has countrywide jurisdiction with no geographical limitation. Like the High Court, it is one court with registries. Further, no objection to jurisdiction was raised at the directions stage as required by Order 42 rule 13, so the objection is a red herring.

p. 4
02

Whether the Respondent was unheard and entitled to file a defence on appeal

Holding

No; the 25th January 2018 judgment was a considered appellate judgment, and the Respondent had filed a defence, testified and called four witnesses in the subordinate court

Reasoning

In an appeal, the respondent need not file a response or defence; participation is by submissions at directions and hearing. The record showed the Respondent, as defendant below, filed a defence dated 18th January 2006, testified and called four witnesses. Setting aside an appellate considered judgment under Order 10, as if a default judgment, was misconceived.

p. 7
03

Whether the court could order amalgamation and execution of transfer documents

Holding

No; the orders were at variance with the decree, unpleaded, and duplicated orders already granted on 13th April 2021

Reasoning

An appellate judge can only grant reliefs covered by the pleadings below. The Appellants' application sought to vary and supersede the decree without review or appeal, inviting the court to sit on appeal over an equal court. Further, similar signing orders had already been granted on 13th April 2021 and remain in existence, making the fresh application an abuse of due process.

p. 8

Legal principles established

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  • The Environment and Land Court is one court with registries across the country; jurisdiction is not geographically limited to a particular registry
  • An objection to the jurisdiction of the appellate court must be raised at the directions stage under Order 42 rule 13 of the Civil Procedure Rules
  • Parties are bound by their pleadings and a court cannot grant orders at variance with those pleaded and canvassed
  • A judge cannot vary or supersede a judgment and decree of a court of coordinate jurisdiction save through review or appeal

Court orders

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  1. 1.The Notice of Motion Application dated 14th April 2021 is devoid of merits and is hereby dismissed
  2. 2.The Notice of Motion Application dated 28th June 2021 is misconceived and amounts to an abuse of the due process of the court; it is equally dismissed
  3. 3.Each party shall bear own costs as pertains to the two Applications

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Section 7 of the Sixth Schedule
  • Environment and Land Court Act, 2011Section 13
  • Civil Procedure Rules, 2010Order 47
  • Civil Procedure Rules, 2010Order 42 Rule 13
  • Civil Procedure Rules, 2010Order 10

Cases cited (1)

  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
On appeal from
Principal Magistrate's Court, Thika
CMCC No. 1739 of 2005
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 2010 and Section 13 of the Environment and Land Court Act, 2011

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, "Harun Njenga Mungai & 2 others v James Mungai Ngurimu [2021] KEELC 472 (KLR)", Case Analysis (2021). Not stated in the judgment (Appeal arising from Thika CMCC No. 1739 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/472/eng@2021-12-02

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