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ELCDismissedNot stated in judgment (appeal from Baricho Magistrate's Court)· [2021] KEELC 890 (KLR)

Jane Njeri Muriithi v Peter Githinji Muthigani [2021] KEELC 890 (KLR)

Environment and Land Court
12 November 2021
758 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to cancel land titles because it had already decided the appeal and the new title owners weren't given a chance to be heard.

What this practically means

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Executive summary

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The applicant, who had successfully appealed to the Environment and Land Court at Kerugoya against a Baricho Magistrate's Court order cancelling titles over land parcels Mwerua/Kanyokora/1361-1364, filed a Notice of Motion dated 18/6/2021 seeking orders that the Land Registrar Kirinyaga cancel entries 5-8 in the green card of Mwerua/Kanyakora/118, reinstate entry number 4, cancel subdivisions arising from the suit land, and reinstate and cancel various titles and their subdivisions. She contended that despite the judgment of 5/7/2019, the respondent had subdivided and transferred portions of the suit land during the pendency of the appeal, frustrating execution of the decree. The respondent opposed, arguing the prayers exceeded the Memorandum of Appeal, duplicated matters in Kerugoya ELC No. 188 of 2018, and would affect third parties not before the court. The court held that, having determined the appeal on 5/7/2019, it became functus officio, and that Section 79D of the Civil Procedure Act bars a second appeal from a first appeal decree; the applicant's remedy lay elsewhere. It further held that cancelling titles of third-party proprietors who were not parties to the appeal would breach the rules of natural justice. The authorities cited by the applicant were found irrelevant and distinguishable. The application was dismissed with costs.

Key legal issues

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01

Functus officio and bar on second appeals

Holding

Having decided the appeal on 5/7/2019, the court is functus officio and cannot entertain the application, which effectively seeks a prohibited second appeal.

Reasoning

The court invoked Section 79D of the Civil Procedure Act, which bars a second appeal from a decree passed in a first appeal. The appeal had been heard and determined on 5/7/2019, so the court was functus officio. The applicant's remedy, if any, lies elsewhere, not in this application.

p. 2
02

Natural justice vis-à-vis non-party proprietors of subdivisions

Holding

Orders cancelling titles and subdivisions affecting third-party proprietors cannot issue without joining and hearing them.

Reasoning

The respondent identified proprietors of the resultant subdivisions who are interested parties in Kerugoya ELC 188 of 2018 but are not parties to this appeal. Allowing the application would affect their titles without affording them a right to be heard, breaching the rules of natural justice.

p. 2
03

Relevance of applicant's authorities

Holding

The authorities cited by the applicant were found irrelevant and distinguishable.

Reasoning

The court considered the authorities referred by the applicant and found them irrelevant and distinguishable, placing no reliance on them in reaching its decision.

p. 2

Legal principles established

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  • After a first appellate court has rendered judgment on an appeal, it becomes functus officio and cannot grant further substantive relief amounting to a second appeal, which Section 79D of the Civil Procedure Act forbids.

Court orders

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  1. 1.The Notice of Motion dated 18/6/2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79D
On appeal from
Baricho Magistrate's Court
Jurisdiction invoked
Section 79D of the Civil Procedure Act (first appellate jurisdiction; no second appeal lies)

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, "Jane Njeri Muriithi v Peter Githinji Muthigani [2021] KEELC 890 (KLR)", Case Analysis (2021). Not stated in judgment (appeal from Baricho Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/890/eng@2021-11-12

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