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ELCPartially AllowedCivil Appeal No. 3 of 2018· [2021] KEELC 4439 (KLR)

John Imoteli alias Barasa Imoteli v Michael Alluku Barasa [2021] KEELC 4439 (KLR)

Environment and Land Court
10 February 2021
2,154 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court set aside land transfer orders made without hearing the landowner, confirming everyone deserves a hearing before losing land.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Busia against a ruling of Hon. W. Chepseba CM in BSA CM Misc. Application No. 33 of 2018 dismissing the appellant's application to review and set aside exparte orders issued on 16/6/2018. The underlying dispute arose from an Amukura Land Disputes Tribunal recommendation that the respondent, who had sued his father (the appellant), receive 9 acres out of land parcel S. Teso/Apokor/1005; the award was adopted in 2001. In June 2018 the respondent obtained exparte orders directing execution of the transfer, including orders for the court executive officer to sign transfer documents. The appellant's application to stay, vary, review or set aside those orders was dismissed for want of merit, the trial magistrate holding he lacked jurisdiction to revert title within a miscellaneous application. A. Omollo J allowed the appeal, holding that the trial magistrate had erred in granting the respondent substantive orders through a miscellaneous application yet denying jurisdiction to review them; that the Tribunal's findings were recommendations rather than an executable award; that the prayers in the respondent's motion went beyond any award, so the trial court exceeded its powers; and that the appellant's right to fair administrative action under Article 47(1) was breached as he was never heard. The court set aside the exparte orders, ordered the respondent's application of 7/6/2018 to be heard afresh inter partes before a magistrate's court gazetted to handle land matters, and awarded costs of the appeal to the appellant.

Key legal issues

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01

Whether the appellant's right to fair administrative action and to be heard was breached by the exparte orders

Holding

The appellant's right to fair administrative action under Article 47(1) was breached; exparte orders affecting his land were issued without hearing him

Reasoning

The respondent obtained substantive orders exparte, allowing him to carve out 9 acres of the appellant's land, without the appellant being heard despite the application being unopposed and the respondent absent and having filed no pleadings. Under section 80 of the Civil Procedure Act and Order 45, the appellant had a right to move the court to review the orders; the trial magistrate failed to give reasons for refusing the discretion. The court agreed the appellant's Article 47(1) right was breached.

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02

Whether the Tribunal's findings amounted to an executable award

Holding

The Tribunal's findings were recommendations, not a conclusive executable award, and the prayers in the respondent's motion did not form part of any award

Reasoning

The Amukura Land Disputes Tribunal's findings were characterised as recommendations that the respondent get 9 acres, advising him to file a civil suit; in the court's interpretation there was no award capable of being executed. Even if treated as an award, the prayers in the respondent's motion of 7/6/2018 went beyond the award, so the trial court exceeded its powers in granting them and erred in declining to set them aside.

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03

Whether the trial magistrate exercised discretion judicially in refusing to set aside the exparte orders

Holding

He did not; the application for review raised a good ground and was made without undue delay

Reasoning

The appellant's motion sought stay and setting aside of orders carved out of his land, made promptly and unopposed. The trial magistrate gave no reasons for denying the discretion. Applying the principles in Pithon Waweru Maina v Thuka Mugira, the court found the trial court erred in law in failing to consider the application on merits.

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Legal principles established

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  • An aggrieved party has a right to move the court that made an order to have it reviewed or set aside where sufficient cause is shown, and has a right to be heard
  • A court cannot grant substantive orders through a miscellaneous application and then decline jurisdiction to review those same orders
  • On a first appeal the court may determine whether the trial magistrate exercised his discretion judicially
  • Orders not premised on the proceedings on record are made in excess of the court's powers

Court orders

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  1. 1.The exparte orders of the trial magistrate made on 14/6/2018 and issued on 16/6/2018 be and is hereby set aside
  2. 2.The Respondent's application dated 7/6/2018 shall be heard afresh and interpartes before the magistrate's court gazetted to handle land matters
  3. 3.Costs of this appeal awarded to the appellant

Authorities

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Legislation

  • Constitution of KenyaArticle 48(1) (as quoted by the appellant; quoted text corresponds to Article 47(1))
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 2(1), Article 19(1) (as quoted in KHRC case)
  • Civil Procedure ActSection 7 (Limitation of Actions Act, as cited in M'Ikiara M'Rinkanya)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (4)

  • M'Ikiara M'Rinkanya & another v Gilbert Kabeere M'Mbijiwe
    Civil Appeal 124 of 2003 (2007) eKLR
  • Kenya Human Rights Commission & Another v Non-Government Organisations Co-ordination Board & Another
    (2018) eKLR
  • Pithon Waweru Maina v Thuka Mugira
    (1983) eKLR
  • Jesse Kimani v McConnel
    [1966] EA 547, 555
On appeal from
Chief Magistrate's Court at Busia
BSA CM Misc. Application No. 33 of 2018
Jurisdiction invoked
First appeal from the magistrates' court under the Civil Procedure Act (section 80 and Order 45 considered); constitutional provisions Articles 47 and 48 applied

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, "John Imoteli alias Barasa Imoteli v Michael Alluku Barasa [2021] KEELC 4439 (KLR)", Case Analysis (2021). Civil Appeal No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4439/eng@2021-02-10

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