Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNyahururu ELC Misc. Application No. 7 of 2019 (Respondent's notice of motion dated 5th February 2021)· [2021] KEELC 2804 (KLR)

Charles Wanjuki Miricho Suing as the personal Representative of the Estate of Stephen Miricho Ngunjiri) v Wanjiru Baari Thitwa [2021] KEELC 2804 (KLR)

Environment and Land Court
24 June 2021
2,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nyahururu (Angima J) determined the Respondent's notice of motion dated 5th February 2021 seeking dismissal of the Appellant's appeal against the award of the Central Provincial Land Appeals Committee dated 28th March 2000. The Appellant had obtained leave in 2020 to appeal out of time and later filed the record of appeal after further extensions. The Respondent argued the appeal was statute barred, an abuse of process, and overtaken by events since the award had been adopted as a decree, executed, and the suit property subdivided among her children who were not parties. The court framed four issues. On jurisdiction, it held Section 4(4) of the Limitation of Actions Act governs actions to enforce judgments, not appeals, and the applicable 60-day limitation under the repealed Land Disputes Tribunals Act had been validly extended. On abuse of process, the court found omission of documents showed possible lack of diligence, not bad faith. However, on whether the appeal was overtaken by events, the court found it futile to proceed: the award had ceased to exist upon adoption as a decree in 2001, the decree was executed, and the property was now owned by non-parties whose rights could not be adversely affected unheard. The court struck out the appeal with costs to the Respondent and awarded her the costs of the application, applying the principle that costs follow the event.

Key legal issues

#
01

Jurisdiction - time-bar under Section 4(4) Limitation of Actions Act

Holding

The appeal was not time barred; Section 4(4) applies to actions upon a judgment (enforcement), not appeals challenging a decision, and the only limitation was the 60-day period under Section 8(9) of the repealed Land Disputes Tribunals Act, which had been extended by court orders

Reasoning

Section 4(4) restricts proceedings to enforce or realize the fruits of a judgment, whereas this appeal sought to overturn the committee's decision. The 60-day period under the repealed Land Disputes Tribunals Act was the applicable one, and leave/extensions had already been granted in earlier miscellaneous applications, which cannot be reopened. Weakness of an appeal also does not oust jurisdiction.

p. 2
02

Abuse of court process

Holding

Not established; annoyance to the Respondent and omission of documents did not amount to abuse of process

Reasoning

The court held that being irritated by an appeal does not, without more, render it an abuse, and missing documents may show lack of diligence rather than bad faith. There was insufficient material to conclude the appeal was an abuse of process.

p. 2
03

Appeal overtaken by events

Holding

Yes - the award had been adopted as a decree, executed, and the suit property subdivided and disposed of to non-parties, rendering the appeal futile

Reasoning

The committee's award ceased to exist in its original state upon adoption as a decree in 2001, the decree was executed long ago, and the property was subdivided among the Respondent's children who were not parties. Natural justice bars adverse orders against absent proprietors, so proceeding would be futile.

p. 3

Legal principles established

#
  • Bringing an action 'upon a judgment' under Section 4(4) of the Limitation of Actions Act refers to proceedings to enforce or realize the fruits of a judgment, not an appeal seeking to overturn a decision
  • The mere age of a decision does not deprive the court of statutory jurisdiction to entertain an appeal where extension/leave has been properly granted
  • Omission of documents from a record of appeal is not necessarily bad faith or abuse of process
  • A distinction exists between fresh evidence on the merits of an appeal and affidavit evidence supporting an application to strike out or dismiss an appeal
  • A court should not make orders in vain, particularly where third parties' proprietary rights would be affected without hearing them

Court orders

#
  1. 1.The Appellant's appeal is hereby struck out with costs to the Respondent.
  2. 2.The Respondent is hereby awarded costs of the application as well.

Authorities

#

Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 27, 75, 78, 79G
  • Civil Procedure RulesOrder 42 rule 13, Order 42, Order 51 rule 1
  • Limitation of Actions Act (Cap 22)Section 4(4)
  • Land Disputes Tribunals Act 1990 (repealed)Section 8(9)

Cases cited (3)

  • M'Ikiara M'Rinkanya & Another v Gilbert Kabeere M'Mbijiwe
    [2007] eKLR
  • Owners of the Motor Vessels “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Central Provincial Land Appeals Committee
Jurisdiction invoked
Sections 3A, 75, 78, 79G of the Civil Procedure Act and Order 42 of the Civil Procedure Rules (leave to appeal out of time from the Land Disputes Tribunals Act regime)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Charles Wanjuki Miricho Suing as the personal Representative of the Estate of Stephen Miricho Ngunjiri) v Wanjiru Baari Thitwa [2021] KEELC 2804 (KLR)", Case Analysis (2021). Nyahururu ELC Misc. Application No. 7 of 2019 (Respondent's notice of motion dated 5th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2804/eng@2021-06-24

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