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ELCPartially AllowedNot stated in judgment (arising from intended appeal in Nakuru CM ELC No. 301 of 2018)· [2022] KEELC 525 (KLR)

Maren Ole Pilale v Asha Nasieku Teeka & another [2022] KEELC 525 (KLR)

Environment and Land Court
28 March 2022
MCMbogo C.G
977 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Narok Environment and Land Court struck out a late-appeal application because it should have been filed at the Nakuru ELC, where the original case was decided.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (Mbogo C.G, J) determined a Notice of Preliminary Objection dated 2nd July 2021 filed by the respondents, seeking to strike out the applicant's Notice of Motion dated 28th July 2020. The motion sought leave to file an appeal out of time against the judgment and decree in Nakuru CM ELC No. 301 of 2018, and to transfer the suit to Narok. The respondents submitted that under Appendix G to the Civil Procedure Rules the application ought to have been filed at the Nakuru High Court (ELC), since the intended appeal arose from a Nakuru subordinate court decision; that the applicant's earlier transfer application in Nakuru High Court Misc Civil Application No. 3 of 2019 had been dismissed by Munyao Sila J; and that the applicant had been docile and had invoked irrelevant provisions. Counsel relied on Serephen Nyasani Menge v Rispar Onsase, Daphne Parry v Murray Alexander Carson and First American Bank of Kenya Ltd v Gulab P Shah on enlargement of time. The applicant filed no submissions. The court applied the Mukisa Biscuits definition of a preliminary objection and held that, an ELC existing in Nakuru, the application could only be heard there, making the filing at Narok unprocedural. The objection was upheld: the interim orders of 26th November 2020 were vacated and the Notice of Motion struck out with costs to the respondents.

Key legal issues

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01

Territorial/proper forum for an application for leave to appeal out of time

Holding

The Notice of Motion was unprocedurally filed at Narok ELC; the proper forum was the Nakuru ELC

Reasoning

The application arises from a decision of the Principal Magistrate's Court in Nakuru in CM ELC No. 301 of 2018. Since an Environmental and Land Court exists in Nakuru presided over by an ELC Judge, the application for enlargement of time and transfer could only be heard there. Invoking the Narok ELC's jurisdiction was therefore unprocedural, and the preliminary objection succeeded. An earlier transfer application had also been dismissed by Munyao Sila J.

p. 2
02

Definition of a preliminary objection

Holding

Adopted the classic Mukisa Biscuits definition: a point of law pleaded or arising by clear implication out of pleadings which, if argued as a preliminary point, may dispose of the suit

Reasoning

The court set out the Mukisa Biscuits formulation and Sir Charles Newbold's elaboration that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.

p. 2

Legal principles established

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  • An application for enlargement of time to appeal out of a subordinate court's decision, arising from a decree in Nakuru, must be filed in the ELC court sitting at Nakuru where an ELC exists

Court orders

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  1. 1.The orders issued on 26th November, 2020 are hereby vacated
  2. 2.The Notice of Motion application dated 28th July, 2020 is struck out with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesAppendix G

Cases cited (4)

  • Serephen Nyasani Menge versus Rispar Onsase
    [2018] eKLR
  • Daphne Parry versus Murray Alexander Carson
    [1963] EA 546
  • First American Bank of Kenya Ltd versus Gulab P Shah & 2 Others
    Nairobi [2002] 1 EA 65
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Jurisdiction of the Environment and Land Court sitting at Narok over an application arising from Nakuru CM ELC No. 301 of 2018; the court held the matter properly lay before the ELC at Nakuru (Section 79G of the Civil Procedure Act cited on enlargement of time).

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, "Maren Ole Pilale v Asha Nasieku Teeka & another [2022] KEELC 525 (KLR)", Case Analysis (2022). Not stated in judgment (arising from intended appeal in Nakuru CM ELC No. 301 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/525/eng@2022-03-28

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