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ELCStruck OutELC A054 of 2020 (Notice of Motion dated 17th November 2021)· [2022] KEELC 505 (KLR)

Maureen Agolla Ong’any v Tom Odago Opiyo [2022] KEELC 505 (KLR)

Environment and Land Court
24 February 2022
OMOguttu Mboya
3,510 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a bid to regain an apartment, ruling that restitution after a reversed appeal decree must be sought in the original trial court, not the appellate court.

What this practically means

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Executive summary

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The Appellant/Applicant, Maurene Agola, moved the Environment and Land Court by Notice of Motion dated 17th November 2021 seeking restitution reinstating her to Apartment No. A901 on LR 330/1375, Nairobi, compensation of Kshs. 300,000 on account of mesne profits and damages, an order directing the OCS Muthangari Police Station to facilitate enforcement, and costs. She had been evicted pursuant to eviction orders obtained by the Respondent from the Chief Magistrate's Court in Milimani CMCC Misc. E870 of 2021, and the underlying judgment in Milimani ELC 17 of 2020 had since been set aside on appeal in ELC A054 of 2020. The Respondent opposed, contending that he is the registered owner, that the eviction orders remain alive, that the premises are now occupied by a tenant, and that an application for restitution under Section 91 of the Civil Procedure Act lies only before the court of first instance. The court framed two issues: its jurisdiction to entertain the restitution application, and whether the compensation claim could be granted on an interlocutory application. Relying on Samuel Kamau Macharia, Republic v Karisa Chengo and Cyrus Komo, the court held that restitution under Section 91 must be sought before the Chief Magistrate's Court, whose decree was reversed, and that this Court lacks jurisdiction. The compensation claim was held premature and misconceived, mesne profits being akin to special damages which must be specifically pleaded and strictly proved, and being payable only to a proven owner after a plenary hearing. The Notice of Motion was struck out, with costs of the application abiding the appeal, the court declining to condemn the Applicant with costs given the estranged relationship of the parties.

Key legal issues

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01

Jurisdiction to entertain an application for restitution under Section 91 of the Civil Procedure Act

Holding

The ELC on appeal is not the proper forum; only the court of first instance (the Chief Magistrate's Court whose decree was reversed) has jurisdiction.

Reasoning

The court noted that jurisdiction flows from the Constitution or legislation and cannot be assumed by innovation. Section 91 of the Civil Procedure Act expressly vests the power to order restitution upon the court of first instance, being the court whose decree has been varied or reversed. Since the decree under which the Applicant was evicted was that of the Chief Magistrate's Court in Milimani ELC 17 of 2020, restitution must be sought there. The Court of Appeal decision in Cyrus Komo was adopted in support.

p. 4
02

Whether compensation of Kshs. 300,000 for mesne profits and damages can be granted on an interlocutory application

Holding

No; the claim is premature, misconceived and out of place, having neither been specifically pleaded nor proved, and being unsuitable for determination on an interlocutory application.

Reasoning

The court observed that it was dealing with an interlocutory application, not a substantive matter. A claim for mesne profits, being akin to special damages, must be specifically pleaded and strictly proved; here the Applicant merely threw the figure on the face of the application without explanation or supporting evidence. Moreover, mesne profits are payable only in respect of proven ownership of the property, which must await a plenary hearing at the appropriate forum.

p. 5

Legal principles established

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  • Where a decree is varied or reversed, an application for restitution under Section 91 of the Civil Procedure Act must be made to the court of first instance, not to the appellate court.
  • A court cannot arrogate to itself jurisdiction exceeding that conferred by the Constitution or written law.
  • A claim for mesne profits, akin to special damages, must be specifically pleaded and strictly proved, and cannot be granted on an interlocutory application.

Court orders

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  1. 1.The Notice of Motion Application dated 17th November 2021 is declared incompetent and struck out.
  2. 2.Costs of the Application shall abide the Appeal.

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 91

Cases cited (6)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • In the Matter of the Interim Independent Electoral Commission (Applicant)
    Constitutional Application Number 2 of 2011
  • Cyrus Komo vs Hannah Nyambura Gikamu
    [2018] eKLR
  • Idi Ayub Shabani V. City Council of Nairobi
    (1982-88) 1 KAR 681 at page 684
  • Bonham Carter Vs. Hyde Park Hotel Limited
    [1948] 64 TLR 177
On appeal from
Chief Magistrate's Court, Milimani
Milimani CM ELC 17 of 2020 (Milimani MC & ELC 17 of 2020)
Jurisdiction invoked
Section 91 of the Civil Procedure Act, Chapter 21 Laws of Kenya (jurisdiction of the court of first instance on reversal or variation of a decree)

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, "Maureen Agolla Ong’any v Tom Odago Opiyo [2022] KEELC 505 (KLR)", Case Analysis (2022). ELC A054 of 2020 (Notice of Motion dated 17th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/505/eng@2022-02-24

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