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ELCDismissed· [2023] KEELC 540 (KLR)

Kioko v Kithuku & another (Environment and Land Appeal E012 of 2020) [2023] KEELC 540 (KLR)

Environment and Land Court
9 February 2023
COChristine Ochieng
1,198 words in judgment
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The bottom line

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A Kenyan land appeal was thrown out because it was filed late without permission and lacked key documents, so deadlines and paperwork matter.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) delivered virtually on 9 February 2023 on the 1st and 2nd respondents' notice of objection to the appellant's appeal, canvassed by written submissions. The respondents objected that the appeal was filed fourteen days out of time without leave, was defective and incompetent without any orders of appeal, and was filed without the leave required under Order 43 of the Civil Procedure Rules because it targeted an order dismissing the suit on res judicata. They relied on Serephen Nyasani Menge v Rispah Onsase and Kenya Ports Authority v Maur Abdalla Bwanamaka. The appellant explained that the ruling was delivered on 5 October 2020 but the court took a short break before certification, and that he filed the memorandum of appeal on 18 November 2020; he also argued he was wrongly subjected to res judicata, the suit properties differed from those previously litigated, and the objection should have gone to a full hearing. The court found that Section 79G of the Civil Procedure Act allows admission of an out-of-time appeal only on good and sufficient cause; the appellant produced no certificate of delay, and the record of appeal contained no order or decree. Further, an appeal against an order on res judicata required leave under Order 43, which was never sought. The court found merit in the objection, dismissed the appeal and awarded costs to the respondents. The appellant's substantive complaints about res judicata and the identity of the suit properties were therefore never determined on the merits.

Key legal issues

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01

Whether the appeal filed out of time without leave and without an order or decree in the record should be dismissed on objection

Holding

Yes. The memorandum of appeal was filed on November 18, 2020 against a ruling delivered on October 5, 2020, fourteen days late, with no certificate of delay and no order or decree in the record of appeal; the objection therefore succeeded and the appeal was dismissed with costs

Reasoning

Section 79G requires appeals to be lodged within thirty days unless good and sufficient cause is shown. The appellant's explanation that the court took a short break was unsupported by a certificate of delay, and the record contained no order or decree appealed against. Further, an appeal against a res judicata dismissal required leave under Order 43, which was never sought. The appeal was therefore incompetent.

p. 2
02

Whether leave was required to appeal against the dismissal of the suit on res judicata

Holding

Yes, leave under Order 43 of the Civil Procedure Rules was mandatory and was not obtained, rendering the appeal defective

Reasoning

The impugned ruling dismissed the entire suit on the ground of res judicata under section 7 of the Civil Procedure Act. Under Order 43 of the Civil Procedure Rules, an appeal against such an order lies only with leave. The appellant neither sought nor obtained leave, so the appeal could not properly lie before the court.

p. 3

Legal principles established

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  • An appeal from a subordinate court must be filed within thirty days of the decree or order appealed against, and may be admitted out of time only if the appellant shows good and sufficient cause
  • An appeal against an order dismissing a suit on res judicata requires leave under Order 43 of the Civil Procedure Rules

Court orders

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  1. 1.The notice of objection to the appeal is allowed
  2. 2.The appeal is dismissed
  3. 3.Costs are awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 43

Cases cited (6)

  • Serephen Nyasani Menge v Rispah Onsase
    (2018) eKLR
  • Kenya Ports Authority v Maur Abdalla Bwanamaka
    (2018) eKLR
  • Ruth Njeri Zeyhle v Eberhard Zevhle & another
    (2010) eKLR
  • Charles Oncharo Ogoti v Safaricom Limited & another
    (2020) eKLR
  • Reuben Mulwa Kioko v Mavoko Development Co Ltd
    Machakos CMCC No 532A of 2014
  • Mavoko Land Development Co Ltd v Kasina Housing Scheme Society & 4 others
    (2019) eKLR
On appeal from
Chief Magistrates Court / subordinate court, Machakos
Not stated (the impugned ruling determined a preliminary objection dated July 28, 2020; reference made to Machakos CMCC No 532A of 2014, Reuben Mulwa Kioko v Mavoko Development Co Ltd)
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 43 of the Civil Procedure Rules (appellate jurisdiction of the High Court/ELC over subordinate courts)

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, "Kioko v Kithuku & another (Environment and Land Appeal E012 of 2020) [2023] KEELC 540 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/540/eng@2023-02-09

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