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ELCStruck OutELC Kitale (Notice of Motion dated 25/8/2021)· [2021] KEELC 877 (KLR)

Sheila Kabole Mabwa v Joshua Angelei & 4 others [2021] KEELC 877 (KLR)

Environment and Land Court
19 November 2021
FNFRED NYAGAKA
5,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court struck out a stranger's bid to overturn a land judgment because an appeal was already pending in the Court of Appeal.

What this practically means

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Executive summary

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Richard Simwa, a non-party who claims title to land parcel Trans-Nzoia/Kaisagat/248 acquired by transmission from Nancy Mabwa, moved the Environment and Land Court at Kitale by Notice of Motion dated 25/8/2021 seeking to be enjoined as a defendant and to have the judgment delivered on 3/12/2018 reviewed and set aside. That judgment had declared the subdivision of parcel Trans-Nzoia/Kaisagat/201 into parcels 247, 248, 249 and 250 illegal, null and void. The Respondents opposed on the grounds that an appeal was pending in the Court of Appeal, that the court was functus officio, and that the application was filed after unreasonable delay. The court framed three issues: whether the application was properly before it, whether a judgment can be reviewed once an appeal has been preferred, and whether it had jurisdiction. It held that while the joinder prayer was technically before it, the substantive prayers were brought by a stranger not yet enjoined. On review, Order 45 Rule 1(a) bars review where an appeal has been preferred, and a Notice of Appeal alone constitutes an appeal since 'appeal' includes an intended appeal; the court distinguished Noradhco Kenya Limited v Loria Michele on that basis. Once judgment was delivered and an appeal lodged, the court became functus officio and its jurisdiction was momentarily suspended while the subject rested in the Court of Appeal, to which the applicant should have gone. The court therefore downed its tools and struck out the application with costs to the Defendants.

Key legal issues

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01

Whether review is available where an appeal has been preferred

Holding

Review is barred once an appeal has been preferred, even by another party, and even where the applicant for review was not a party to the original proceedings.

Reasoning

Order 45 Rule 1(a) permits review only of a decree or order 'from which no appeal has been preferred'. The word 'person' is all encompassing and includes non-parties, but once any appeal is preferred, the would-be review applicant must await the appellate court's determination. A Notice of Appeal alone constitutes an appeal since 'appeal' includes an intended appeal. Permitting review would create parallel proceedings and possibly conflicting outcomes.

p. 3
02

Whether the court had jurisdiction over the application

Holding

The court lacked jurisdiction, its jurisdiction being momentarily suspended because the subject matter was pending before the Court of Appeal.

Reasoning

The Plaintiff had filed a Notice of Appeal and a Record of Appeal against the whole judgment, including the cancellation of the applicant's title. The claim follows the subject and jurisdiction follows the claim; once the Court of Appeal is seized of the matter, all other forums are suspended. The trial court had become functus officio. The applicant should have approached the Court of Appeal where the subject rests.

p. 6
03

Whether the application was properly before the court

Holding

The prayers for setting aside and leave to defend were improperly brought by an outsider not yet enjoined, though the prayer for joinder itself was properly before the court.

Reasoning

A stranger to proceedings cannot take part without leave of the court. The applicant combined the joinder prayer with substantive prayers before being enjoined. However, the joinder limb (Prayer 4) was properly before the court, its merits not having been reached because of the jurisdictional bar.

p. 2

Legal principles established

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  • Once an appeal has been preferred from a decree or order, an application for review of that decree or order is barred, regardless of who preferred the appeal.
  • The filing of a Notice of Appeal amounts to preferring an appeal, since 'appeal' includes an intended appeal under Rule 2(2) of the Court of Appeal Rules.
  • Upon delivering judgment, a trial court becomes functus officio and its jurisdiction is momentarily suspended while the subject matter is pending before the appellate court.
  • A person cannot seek substantive relief such as setting aside a judgment before being enjoined as a party to the proceedings.

Court orders

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  1. 1.The Application dated 25/8/2021 struck out with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 1 Rule 1(2)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 4 Rules 1(2) and 1(5)
  • Court of Appeal RulesRule 2(2)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (11)

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Baluram vs P. Chellathangam & Ors
    10/12/2014
  • Edgar-Gear Investments Limited v Guido Pallada & another
    [2021] eKLR
  • JMK -v- MWN & Another
    (2015) eKLR
  • Tang Gas Distributors Ltd -v- Said & Others
    (2014) EA 448
  • Noradhco Kenya Limited v Loria Michele
    [1998] eKLR (Civil Application No. 258 of 1997)
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Karani 47 Others V Kijana & 2 Others
    (1987) KLR 557
  • Menginya Salim Murgani vs. Kenya Revenue Authority
    (2014) eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
  • Owners of Motor Vessel “Lilian S” vs Caltex Oil Kenya Ltd
    (1989) KLR 1
Jurisdiction invoked
Sections 3, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution invoked to cure defective citation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sheila Kabole Mabwa v Joshua Angelei & 4 others [2021] KEELC 877 (KLR)", Case Analysis (2021). ELC Kitale (Notice of Motion dated 25/8/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/877/eng@2021-11-19

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