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ELCDismissedEnvironment and Land Appeal 16 of 2021· [2022] KEELC 14737 (KLR)

Ganira v Ganira & 3 others

Environment and Land Court
10 November 2022
EAE Asati
2,266 words in judgment
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The bottom line

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The Environment and Land Court dismissed a land appeal filed late by a man who was never a party to the case, and ordered him to pay costs.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Vihiga against a ruling of Senior Principal Magistrate S. O. Ongeri dated April 27, 2021 in Vihiga SPMC E&L Case No 58 of 2020. The underlying suit, filed in the name of Femines Musimbi Ganira by Julius Masiva Obuga purporting to act under a power of attorney, challenged the transfer of land parcel South Maragoli/Buyonga/1286 and sought cancellation of register entries. The named plaintiff, who was blind, applied to strike out the suit on the ground that she never instituted it and that the power of attorney was a forgery; Obuga separately sought an injunction. The trial court dismissed the injunction application, allowed the striking-out application, and struck out the suit with costs. Obuga appealed in the name of Femines Musimbi Ganira. Asati J identified two issues: whether the appeal was properly before the court and whether it had merit. The court found the appeal filed out of time under section 79G of the Civil Procedure Act with no extension or certificate of delay, that the memorandum was undated and unsigned as required by Order 42 rule 1(1), and that Obuga, a non-party whose authority had been denounced on oath by the named appellant, had no locus standi to appeal. The court further found the trial magistrate properly guided on striking-out principles and characterised the appeal as an abuse of court process. The appeal was dismissed with costs payable by Obuga to the named appellant and the respondents.

Key legal issues

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01

Timeliness of the appeal

Holding

The appeal was filed out of time with no extension of time or certificate of delay shown

Reasoning

The ruling was delivered on April 27, 2021 and the memorandum of appeal filed on July 8, 2021, over two months later. Section 79G requires filing within thirty days. No extension order or certificate of delay was produced; proceedings were certified ready on May 5, 2021, within the limitation period.

p. 4
02

Locus standi of Julius Masiva Obuga

Holding

Being a non-party whose alleged authority was denounced on oath by the named appellant, he had no locus standi to appeal

Reasoning

The named plaintiff denounced on oath the actions of Julius Masiva Obuga, alleging a forged power of attorney. The ruling appealed was on her own application to strike out the suit. The court found no interest or grievance demonstrated by Obuga, a non-party, to pursue the appeal.

p. 4
03

Merits of the appeal against striking out

Holding

The trial court properly applied the principles for striking out pleadings; no reason to interfere with its discretion

Reasoning

The court read the ruling alongside the memorandum and submissions and found the trial magistrate properly guided on the principles for striking out suits. The appeal was characterised as an abuse of court process, hindering the overriding objective under the ELC Act and Civil Procedure Act.

Legal principles established

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  • A non-party to proceedings has no locus standi to file an appeal against a ruling in those proceedings
  • An appeal filed out of time without extension under the proviso to section 79G of the Civil Procedure Act is improperly before the court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal payable by Julius Masiva Obuga are awarded to Femines Musimbi Ganira and the 1st, 2nd and 3rd respondents

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure RulesOrder 42 rule 1(1)
  • Civil Procedure RulesOrder 9 rule 2(a)
  • Environment and Land Court Actsection 19(2)
  • Environment and Land Court Actsection 3
  • Civil Procedure Actsections 1A and 1B

Cases cited (4)

  • Kivanga Estate Limited v National Bank of Kenya Limited [2017] eKLR
    [2017] eKLR

    Principles for striking out pleadings; appellate restraint over discretionary striking-out powers

  • Gitobu Imanyara & 2 others v Attorney General [2016] eKLR
    [2016] eKLR

    Duty of a first appellate court to reconsider evidence and draw its own conclusions

  • Ajayi v Legos (1967) ALR 213
    (1967) ALR 213

    Authority on lack of authority to act for a party in filing suit (relied on by respondents)

  • Muchunga Investment Limited v Safari Unlimited (Africa) Ltd & 2 others [2009] eKLR
    [2009] eKLR

    Definition of abuse of court process

On appeal from
Senior Principal Magistrate's Court at Vihiga
Vihiga SPMC E&L Case No 58 of 2020
Jurisdiction invoked
First appeal from subordinate court under section 79G of the Civil Procedure Act; Environment and Land Court Act section 19(2)

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, "Ganira v Ganira & 3 others", Case Analysis (2022). Environment and Land Appeal 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14737/eng@2022-11-10

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