Kabiri v Githinji & another (Environment and Land Appeal E009 of 2021) [2022] KEELC 2320 (KLR)
The bottom line
#A Murang'a court allowed an elderly landowner to stay on disputed land pending appeal, but banned him from farming it and refused costs due to his delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the threshold of a pure point of law
Not merited; compliance with Order 9 Rule 9 required investigation of facts, so the objection could not stand.
A preliminary objection must rest on agreed facts and be argued on the assumption that the other side's pleaded facts are correct. Here the appellant alleged a consent was filed while the respondents disputed compliance; determining the point would require the court to peruse proceedings and ascertain facts, which is impermissible at the preliminary objection stage.
Whether non-compliance with Order 9 Rule 9 rendered the appeal fatally defective
It did not; the consent was between the party and incoming advocates rather than outgoing and incoming advocates, but the defect was procedural, not fundamental.
Order 9 Rule 9 is mandatory, and the consent of 9th June 2021 did not conform because it was not between the outgoing and incoming advocates nor adopted as a court order. However, the right to legal representation is constitutionally protected; the respondent suffered no substantiated prejudice, jurisdiction was not ousted, and Article 159(2)(d) and Sections 3A and 3B CPC permit the court to do substantive justice.
Whether the application for stay of execution dated 10th August 2021 was merited
Allowed on conditions: applicant may occupy but not farm or conduct economic activity on the land; respondent may not sell, alienate or sub-divide; no costs.
Substantial loss was demonstrated since eviction would permanently remove the applicant from land he had occupied since 1962. However, the application was filed about 2½ months after judgment with no explanation, constituting inordinate and unexplained delay. The court balanced the respondent's right to enjoy the fruits of judgment with preserving the appeal, imposing conditions and making no order as to costs.
Legal principles established
#- A preliminary objection must raise a pure point of law; where there is a contest of facts requiring investigation, it fails.
- Non-compliance with Order 9 Rule 9 does not render proceedings a nullity where it causes no prejudice, does not oust jurisdiction and does not go to the root of the proceedings.
- Substantial loss is the cornerstone of an application for stay of execution pending appeal.
- An unexplained delay even of a day in filing a stay application may be inordinate.
Court orders
#- 1.Preliminary Objection dated 23rd November, 2021 dismissed
- 2.Application dated 10th August, 2021 allowed on condition that the Applicant shall continue to occupy the suit land but shall not conduct any farming and/or economic activity thereon until the Appeal is heard and determined
- 3.The 1st Respondent shall not sell, alienate and/or sub-divide the suit land
- 4.No orders as to costs
- 5.Appellant directed to prosecute the appeal expeditiously and without delay
- On appeal from
- Kigumo Law Courts (ELC No. 20 of 2018)
- ELC No. 20 of 2018
- Jurisdiction invoked
- Appellate jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules; Sections 3A and 3B of the Civil Procedure Act; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabiri v Githinji & another (Environment and Land Appeal E009 of 2021) [2022] KEELC 2320 (KLR)", Case Analysis (2022). Murang'a Civil Appeal No. E009 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2320/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.