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ELCPartially AllowedELC Appeal (Kerugoya) arising from Kerugoya PM's Court L.D.T No. 10 of 1999· [2022] KEELC 1262 (KLR)

Fredrick Muchiri Mburuto v Grace Wanjiku & another [2022] KEELC 1262 (KLR)

Environment and Land Court
18 February 2022
ECE.C. Cherono
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed part of a land appeal to continue, ruling some orders need automatic appeal rights while others require the court's prior permission.

What this practically means

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Executive summary

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The 1st Respondent moved the Environment and Land Court at Kerugoya by Notice of Motion dated 17th July 2020 seeking striking out of the Appellant's appeal from the Resident Magistrate's ruling of 31st March 2017 in Kerugoya PM's Court LDT No. 10 of 1999. Her position was that the ruling, which adopted the award of the Provincial Land Disputes Appeals Committee, was purely ministerial and attracted no automatic right of appeal under Section 75 of the Civil Procedure Act, and that the appeal was filed without leave, never served, and an old matter where litigation had run for 23 years. The Appellant countered that the appeal was competent under Section 75(h) and Order 43 Rule 1(k) and raised a fundamental point of law - whether the magistrate could lawfully authorise the Executive Officer to sign transfer documents for land registered in the name of a non-party, Purity Wahito Kinyua. The court examined the impugned ruling's constituent applications and held that the review application of 25th October 2010 was appealable as of right under Order 43 Rule 1(x), but the execution application of 5th November 2010 under Section 98 CPC required leave, which was never sought - a failure going to the root of that part of the appeal. Invoking Article 159(2)(d) and the Chemwolo authority, the court declined to strike out the entire appeal as draconian, granted leave to amend the Memorandum of Appeal within 21 days, and ordered costs of the application to be in the cause.

Key legal issues

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01

Appealability of orders in an omnibus ruling on review and execution

Holding

The review component was appealable as of right under Order 43 Rule 1(x); the execution component under Section 98 required leave

Reasoning

The court separated the impugned ruling's components. The application for review fell under Order 43 Rule 1(x) giving an automatic right of appeal, while orders for execution of instruments under Section 98 CPC fall outside the orders appealable without leave under Order 43 Rule 1(k), hence requiring leave.

p. 3
02

Whether striking out the entire appeal was warranted

Holding

No - the court granted leave to amend the Memorandum of Appeal instead, invoking Article 159(2)(d)

Reasoning

Because the applications were determined in a single omnibus ruling, striking out the whole appeal would be draconian. The court invoked its discretionary power to allow amendment of pleadings and Article 159(2)(d) on procedural technicalities to keep the appeal alive in respect of the appealable portion.

p. 4

Legal principles established

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  • Orders emanating from an application for review are appealable as of right under Order 43 Rule (1)
  • An order for execution of instruments under Section 98 of the Civil Procedure Act can only be appealed against with leave of the court
  • Failure to seek leave where required goes to the root of the appeal

Court orders

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  1. 1.No appeal lies with regards to the order and findings of the application dated 5th November, 2010 in Kerugoya PM's Court LDT Case No. 10 of 1999
  2. 2.An appeal lies as of right with regards to the application dated 25th October, 2010 in the same case
  3. 3.Appellant granted leave to amend his Memorandum of Appeal within 21 days, failing which the appeal shall stand struck out with costs to the Respondent
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 75, 76, 65(1)(b), 98
  • Civil Procedure RulesOrder 43 Rule 1; Order 22 rules 25, 57, 61(3), 73
  • Land Disputes Tribunals ActNo. 18 of 1990 (repealed)
  • Environment and Land Court ActNo. 19 of 2011
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • Phillip Chemwolo & Another vs Augustine Kubede
    [1982-88] KAR 103 at 1040
On appeal from
Kerugoya Principal Magistrate's Court
L.D.T No. 10 of 1999
Jurisdiction invoked
Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules (appellate jurisdiction over subordinate court orders)

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, "Fredrick Muchiri Mburuto v Grace Wanjiku & another [2022] KEELC 1262 (KLR)", Case Analysis (2022). ELC Appeal (Kerugoya) arising from Kerugoya PM's Court L.D.T No. 10 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1262/eng@2022-02-18

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