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ELCDismissedAppeal against ruling in Tigania CM & ELC No. 174 of 2018· [2021] KEELC 3044 (KLR)

Amin Mohamed Khan v Mary Mwonjaru Cecilia & 2 others [2021] KEELC 3044 (KLR)

Environment and Land Court
27 May 2021
2,551 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's appeal, confirming that an amended title deed is not 'new evidence' justifying review of a court decision.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru (judgment signed by Y. M. Angima, ELC Judge, delivered by L. N. Mbugua, ELC Judge) against a ruling of Hon. G. Sogomo (PM) in Tigania CM & ELC No. 174 of 2018 dismissing the Appellant's application for review of an earlier order refusing a temporary injunction. The Appellant claimed parcels Nos. Tigania/Antuamburi/4042 and 11348, allocated to the Respondents during land adjudication, formed part of his Parcel No. 6388 which ought to measure 0.21 ha. The trial court had refused an injunction against government officers under Section 16(2) of the Government Proceedings Act; the Appellant then withdrew the suit against the LAO and the Attorney General, obtained an amended title deed reflecting the larger acreage, and sought review under Order 45 of the Civil Procedure Rules. The ELC framed three issues: whether the trial court erred in declining review, whether the Appellant was entitled to the reliefs sought, and costs. Applying the principles in Mbogo v Shah and Apungu Arthur Kibira on interference with discretionary decisions, and Order 45 as explained in Origo v Mungala, the court held that the amended title was not a 'discovery' of new matter since the Appellant had always claimed the larger acreage, that the Respondents' earlier titles could not be unilaterally cancelled by the Land Registrar, and that the Appellant still had to satisfy the Giella injunction test. The appeal was dismissed in its entirety with costs to the Respondents; the request to transfer the main suit to Meru also failed.

Key legal issues

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01

Whether the trial court erred in declining the application for review under Order 45

Holding

No error. The amended title deed was not a 'discovery' of new matter since the Appellant had always claimed 0.21 ha, and the Respondents' prior titles could not be unilaterally disregarded by the Land Registrar

Reasoning

The court held that the two grounds relied on - withdrawal of the suit against government officers and the amended title deed - could not ground review. The Appellant had always asserted the 0.21 ha acreage, so no new matter was discovered. The Land Registrar could not unilaterally cancel the Respondents' titles, and the Appellant still had to demonstrate a prima facie case under Giella for any injunction.

p. 3
02

Whether the appellate court should interfere with the trial court's discretionary decision

Holding

No. There was no demonstration that the discretion was exercised injudiciously, on wrong principles, or with regard to irrelevant considerations

Reasoning

Applying Mbogo v Shah and Apungu Arthur Kibira, an appellate court interferes with discretionary decisions only on strict grounds: error of law or principle, irrelevant or ignored relevant considerations, or a plainly wrong decision. The court found the trial court had the review principles in mind and reached the correct decision even without enumerating them.

p. 3
03

Costs of the appeal

Holding

Costs follow the event; the successful Respondents were awarded costs

Reasoning

Under the proviso to Section 27 of the Civil Procedure Act, costs follow the event unless the court directs otherwise for good reason. No good reason was found to depart from the general rule.

p. 4

Legal principles established

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  • An appellate court should be slow to interfere with the exercise of judicial discretion by a trial court unless it is shown the discretion was not exercised judiciously or the court acted on wrong principles
  • An applicant for review must establish discovery of new and important matter not obtainable with due diligence, an error apparent on the face of the record, or other sufficient reason, and must apply without unreasonable delay
  • Withdrawal of a suit against a government officer does not entitle a party to an injunction against other parties as a matter of course; the Giella requirements must still be met

Court orders

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  1. 1.The Appellant's appeal is dismissed in its entirety
  2. 2.The Respondents shall be awarded costs of the appeal

Authorities

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Legislation

  • Government Proceedings ActSection 16(2)
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27 (proviso)
  • Civil Procedure RulesOrder 45, rule 1

Cases cited (9)

  • Giella v Cassman Brown & Co Ltd
    [1973] E.A 358
  • Mbogo & Another v Shah
    [1968] EA 93
  • Farah Awad Gullet v CMC Motors Group Limited
    [2018] eKLR
  • Apungu Arthur Kibira v IEBC & 3 Others
    [2019] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Kacem v Bashir
    (2010) NZSC 112; (2011) 2 NLRI
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi
    [2016] eKLR
  • Origo & Another v Mungala
    [2005] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Principal Magistrate's Court, Tigania
Tigania CM & ELC No. 174 of 2018
Jurisdiction invoked
First appellate jurisdiction over a ruling of the Principal Magistrate's Court (appeal against ruling and order dated 4th April 2019 in Tigania CM & ELC No. 174 of 2018)

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, "Amin Mohamed Khan v Mary Mwonjaru Cecilia & 2 others [2021] KEELC 3044 (KLR)", Case Analysis (2021). Appeal against ruling in Tigania CM & ELC No. 174 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3044/eng@2021-05-20

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