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ELCDismissedMiscellaneous Application dated 5th March 2021 (arising from CMC Migori ELC No. 55 of 2018)· [2021] KEELC 1159 (KLR)

Monata Matiko Chonchorio v John Marwa Chabaro [2021] KEELC 1159 (KLR)

Environment and Land Court of Kenya
3 November 2021
MKMOHAMMED N. KULLOW
3,260 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a time-barred land dispute, confirming that no appeal can fix a case filed outside the legal deadline.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th March 2021, the Applicant sought leave to appeal out of time against the decree in Migori CMC ELC No. 55 of 2018, a stay of execution of that decree, and conservatory orders preserving L.R. No. NYABASI/BOMERANI/307 and restraining the Respondent from harvesting, selling or destroying Eucalyptus trees he had planted on a 2½ acre portion. The trial court had on 29th July 2020 dismissed both the Applicant's suit (founded on a 2004 sale agreement) and the Respondent's counterclaim as statute barred, and a review application was declined on 3rd March 2021. The Respondent opposed, arguing the order was not appealable as of right, review had been declined, and the nine-month delay was inordinate. The court framed three issues. On extension of time it applied the Leo Sila Mutiso principles, found the delay not inordinate given Covid-19 disruptions, but held that limitation goes to the root of jurisdiction - citing Anaclet Kalia Musau and Nasra Ibrahim Ibren - so no appeal could confer jurisdiction where none existed; Article 159 could not override rules of procedure, and constructive trust could not be invoked on facts anchored in a contract. Leave was refused. On stay, the decree was a negative order dismissing both claims, incapable of execution, following Ndungu Kinyanjui and David Thiong'o. On conservatory orders, relying on Munya v Kithinji, the dispute was purely private with no public-law connotation, so they were refused. The application was dismissed with costs to the Respondent. The court however observed that the Respondent could not evict the Applicant or harvest the trees, and both parties needed to regularise their position.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave was refused. Though the delay following the review ruling was not inordinate (partly due to Covid-19 disruption), the intended appeal could not overcome the jurisdictional bar of limitation: both suit and counterclaim were dismissed as statute barred.

Reasoning

The court applied the Leo Sila Mutiso principles on extension of time and found the delay excusable. However, it held that limitation is a jurisdictional question, citing Nasra Ibrahim Ibren and Anaclet Kalia Musau; once a suit is time-barred the court has no jurisdiction, and no appeal can confer jurisdiction. Article 159 cannot override procedural rules, and constructive trust could not be invoked since the plaintiff's case was anchored on a 2004 sale contract.

p. 4
02

Whether stay of execution could issue against the decree of 29th July 2019

Holding

Stay was refused because the decree dismissing both the suit and the counterclaim was a negative order incapable of execution.

Reasoning

Order 42 Rule 6(2) requires substantial loss. The decree ordered no party to do or refrain from doing anything; following Ndungu Kinyanjui and David Thiong'o, there is nothing to enforce or restrain, so no stay can properly issue. The judgment merely maintained the status quo ante litem.

p. 4
03

Whether conservatory orders could issue to preserve the suit property and the Eucalyptus trees

Holding

Conservatory orders were refused as the dispute is private in nature with no public law element.

Reasoning

Relying on the Supreme Court in Munya v Kithinji, the court noted conservatory orders facilitate ordered functioning in public agencies and are tied to public interest and constitutional values. The dispute was between private parties over private land, so conservatory orders were unavailable. The court however observed it would be unacceptable for the Respondent to evict the Applicant or harvest the trees, and both parties need to regularise their position.

p. 4

Legal principles established

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  • Limitation of time goes to the root of a court's jurisdiction; a court lacks jurisdiction over a suit filed outside the limitation period, and an appeal cannot confer jurisdiction where none existed.
  • A negative order, which requires no party to do or refrain from doing anything, is incapable of execution and no order of stay can issue in respect of it.
  • Conservatory orders bear a public-law connotation and are not appropriate in purely private disputes between private parties over private property.
  • Article 159 of the Constitution and the oxygen principles were never meant to aid the overthrow of rules of procedure and timelines.

Court orders

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  1. 1.Prayer no. 2 of the Notice of Motion dated 5.03.2021 (leave to file appeal out of time) is dismissed.
  2. 2.Prayer no. 3 is dismissed to the extent of the conservatory orders as sought.
  3. 3.The Application dated 05.03.2021 is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 43 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Limitation of Actions Act (Cap 22)Sections 4(1)(c) and 7
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Leo Sila Mutiso vs Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • Gathoni –vs- Kenya Co-operative Cremires Ltd
    (1982) KLR 104
  • Anaclet Kalia Musau v Attorney General & 2 Others
    [2020] eKLR, Civil Appeal 111 of 2017
  • Nasra Ibrahim Ibren V. Independent Electoral and Boundaries Commission & 2 others
    Supreme Court Petition No. 19 of 2018
  • Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were
    [2014] eKLR
  • Owners and Masters of The Motor Vessel "Joey" vs. Owners and Masters of The Motor Tugs "Barbara" and "Steve B"
    [2008] 1 EA 367
  • Iga V. Makerere University
    (1972) E.A 62
  • Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 6 others
    [2013] eKLR
  • Gitirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Others
    (2014) eKLR
  • Ndungu Kinyanjui vs Kibichoi Kugeria Services & Another
    [2007] eKLR
  • David Thiong'o T/A Welcome General Stores vs Market Fancy Emporium
    Civil Application No. NAI. 47 OF 2007 [2007] eKLR
On appeal from
Chief Magistrate's Court, Migori
CMC Migori ELC No. 55 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6(2) and Order 43 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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Later judgments citing this (8)

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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, "Monata Matiko Chonchorio v John Marwa Chabaro [2021] KEELC 1159 (KLR)", Case Analysis (2021). Miscellaneous Application dated 5th March 2021 (arising from CMC Migori ELC No. 55 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1159/eng@2021-11-03

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