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ELCPartially AllowedEnvironment and Land Appeal 21 of 2019· [2022] KEELC 14842 (KLR)

Kamau & another v Kamau & 3 others

Environment and Land Court
9 November 2022
BEB M Eboso
3,287 words in judgment
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The bottom line

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Kenya's Environment and Land Court voided a magistrate's ruling made on an already-dismissed application, but the land award holders can still start fresh enforcement proceedings.

What this practically means

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Executive summary

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This first appeal arose from a ruling by Hon P Gichohi (CM) delivered on February 5, 2019 in Kiambu CMC Environment & Land Case No 24 of 2003, declining to read and adopt an award of the Kiambaa Land Disputes Tribunal on the ground that the tribunal and the provincial land disputes appeals committee lacked jurisdiction over registered land. The award, made in 2003 in favour of the appellants over parcel Kiambaa/Kihara/T479, had been upheld by the appeals committee in 2008 and by the High Court (Obaga J) in Nairobi High Court Civil Appeal No 446 of 2008, dismissed on April 25, 2017. The ELC framed three issues: entitlement to appeal as of right, the legal status of proceedings on the application dated May 4, 2011, and whether the magistrate erred. The court held the appeal lay as of right under Section 75(1)(b) of the Civil Procedure Act, treating the adoption application as an award in the form of a special case. Critically, the court found the application dated May 4, 2011 had already been dismissed by Hon C Oluoch on June 8, 2011 because a High Court appeal was pending; the proceedings before Hon Gichohi and her ruling were therefore conducted on a non-existent application and were declared nullities. The court declined to rule on the merits to avoid prejudicing future adoption proceedings, granted the appellants liberty to initiate fresh adoption proceedings, and ordered each party to bear their respective costs, the major error being attributable to the Magistrate Court.

Key legal issues

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01

Right of appeal without leave

Holding

The appeal lay as of right under Section 75(1)(b) of the Civil Procedure Act; no prior leave was required.

Reasoning

The impugned decision was made on an application inviting the Magistrate Court to read and adopt a tribunal award as an order or judgment of the court. The court characterised such an application as an award in the form of a special case contemplated by Section 75(1)(b), so the right of appeal lay as of right, agreeing with counsel for the appellants.

p. 6
02

Legal status of proceedings on a dismissed application

Holding

The proceedings between November 9, 2017 and February 5, 2019 and the ruling of February 5, 2019 were nullities because the application dated May 4, 2011 had been dismissed on June 8, 2011 by Hon C Oluoch.

Reasoning

The record showed the application dated May 4, 2011 was dismissed on June 8, 2011 because an appeal was pending in the High Court. After Obaga J disposed of that appeal, the appellants should have filed a fresh miscellaneous application for adoption of the award. Instead they prosecuted a non-existent application; without a reinstatement order, everything done on it was a nullity.

p. 6
03

Merits of the magistrate's decision

Holding

The court declined to rule on the merits of the nullified findings to avoid prejudicing future adoption proceedings.

Reasoning

The court acknowledged the appellants hold an award they seek to enforce. Because the impugned proceedings and ruling were nullities, making merits pronouncements on them could prejudice the parties when proper adoption proceedings are initiated in the Magistrate Court; the appellants were left at liberty to file fresh adoption proceedings.

p. 6

Legal principles established

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  • Proceedings and a ruling conducted and rendered on an application that had already been dismissed, and was non-existent, are nullities in law.
  • An appeal lies as of right under Section 75(1)(b) of the Civil Procedure Act against an order on an application to adopt a tribunal award as a judgment of the court.

Court orders

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  1. 1.The hearing proceedings leading to the ruling rendered by Hon P Gichohi, Chief Magistrate, on February 5, 2019 in Kiambu CMC MCEL No 24 of 2003 together with the said ruling are declared null and void
  2. 2.The appellants shall be at liberty to initiate appropriate adoption proceedings in relation to the award subject matter of this appeal
  3. 3.Parties shall bear their respective costs of this appeal and costs relating to the nullified proceedings

Authorities

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Legislation

  • Civil Procedure ActSection 75(1)(b), Section 75(2)
  • Civil Procedure RulesOrder 43
  • Land Disputes Tribunal Act (repealed)Section 7

Cases cited (2)

  • Susan Munyi v Keshar Shiani
    (2013) eKLR

    Duty of a first appellate court to analyse and evaluate the evidence afresh and reach independent conclusions.

  • Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR

    First appellate court's primary role to re-evaluate, re-assess and re-analyse the record and determine whether trial conclusions stand.

On appeal from
Kiambu Chief Magistrate Court (Environment and Land)
Kiambu CMC Environment & Land Case No 24 of 2003
Jurisdiction invoked
Section 75 of the Civil Procedure Act (first appeal against an order on an award stated in the form of a special case)

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, "Kamau & another v Kamau & 3 others", Case Analysis (2022). Environment and Land Appeal 21 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14842/eng@2022-11-09

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