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ELCDismissedELC Appeal No E001 of 2022 (Notice of Motion dated February 7, 2022)· [2022] KEELC 3597 (KLR)

Wekesa & another v Wekesa (Environment and Land Appeal E001 of 2022) [2022] KEELC 3597 (KLR)

High Court of Kenya
21 July 2022
BOBoaz N. Olao
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that an appeal cannot be dismissed early without hearing it — even a weak appeal deserves its day in court.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao, Judge, of the High Court at Bungoma determined a Notice of Motion dated February 7, 2022 by Dorothy Sylvia Wekesa and Geofrey Wekesa, the Applicants and successful parties before the subordinate court. They sought to stay and, in substance, to have dismissed an appeal filed by Daniel Nyongesa Wekesa (Respondent before the court, Appellant in the appeal) against the ruling of Hon. C. S. Mutai, Senior Principal Magistrate, delivered December 10, 2021 in Bungoma CM ELC No E067 of 2021, on the ground that the orders had been fully spent, the Respondent had been evicted from the suit land (West Bukusu/South Mateka/5406), and the appeal was overtaken by events and frivolous. The Respondent opposed, invoking his constitutional right to a fair trial. The court held that the right of access to justice under Articles 48 and 50(1) of the Constitution and the audi alteram partem rule required that the Respondent be heard; that the only avenue for summary rejection of an appeal is Section 79B of the Civil Procedure Act, which requires perusal of the record of the Subordinate Court, and no such record existed; and that an appellant is entitled to his day in court however weak the appeal, citing Savings and Loan v Odongo, DT Dobie v Muchina and Yaya Towers v Trade Bank. The court found no jurisdiction to dismiss the appeal in the manner sought, held the application devoid of merit, and dismissed it with costs.

Key legal issues

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01

Whether the court could dismiss the appeal summarily because the impugned ruling had been spent and the appeal overtaken by events

Holding

The court cannot dismiss the appeal as sought; summary rejection is governed exclusively by Section 79B of the Civil Procedure Act and cannot be exercised without the record of the Subordinate Court.

Reasoning

Section 79B permits summary rejection only after a Judge peruses the appeal and the record of the Subordinate Court. Here no record of the Subordinate Court was available, so no direction under Section 79C or summary rejection under Section 79B was possible. The Applicants were 'jumping the gun'. The appeal must be placed before the court for directions before any decision to reject or admit it.

p. 3
02

Whether the Respondent's right of access to justice and fair hearing barred summary dismissal of the appeal

Holding

Yes. Under Articles 48 and 50(1) of the Constitution and the rules of natural justice, the Respondent is entitled to have the procedures in Sections 79 to 79G of the Civil Procedure Act applied before his appeal is dismissed, and the appeal must first be heard and determined on its merits.

Reasoning

Article 50(1) guarantees every person the right to have any dispute decided in a fair and public hearing; Article 48 guarantees access to justice. The audi alteram partem rule requires that no person be condemned unheard. Having filed an appeal, the Respondent was entitled to expect the statutory appeal procedures to be applied, and the authorities (Savings and Loan, DT Dobie, Yaya Towers) confirm that weak claims or appeals must be allowed to proceed to hearing.

p. 3

Legal principles established

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  • An appeal from a Subordinate Court can only be summarily rejected under Section 79B of the Civil Procedure Act after the Judge has perused the record of the Subordinate Court; without that record the court has no jurisdiction to dismiss the appeal in the manner sought.
  • No matter how weak an appeal may be, the appellant is entitled to his day in court; summary dismissal is reserved for the clearest of cases.

Court orders

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  1. 1.The Notice of Motion dated February 7, 2022 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 79, 79B, 79C, 79G
  • Civil Procedure RulesOrder L Rule 1
  • Constitution of Kenya, 2010Articles 48 and 50(1)

Cases cited (3)

  • Savings And Loan Kenya Ltd v Odongo
    1987 KLR 294
  • DT Dobie & Company (k) Ltd v Muchina
    1982 KLR 1
  • Yaya Towers Ltd v Trade Bank Ltd (in Liquidation)
    CA Civil Appeal No 35 of 2000
On appeal from
Bungoma Chief Magistrate's Court
ELC Case No E067 of 2021
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order L Rule 1 of the Civil Procedure Rules

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, "Wekesa & another v Wekesa (Environment and Land Appeal E001 of 2022) [2022] KEELC 3597 (KLR)", Case Analysis (2022). ELC Appeal No E001 of 2022 (Notice of Motion dated February 7, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3597/eng@2022-07-21

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