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ELCDismissedEnvironment and Land Appeal E024 of 2022· [2023] KEELC 17937 (KLR)

Makokha & 3 others v Munyendo

Environment and Land Court
13 June 2023
DOD. O. Ohungo
2,469 words in judgment
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The bottom line

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A Kenyan court confirmed magistrates can reset stalled land cases to square one when parties abuse interim applications to delay progress.

What this practically means

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Executive summary

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The appellants appealed against a ruling of Hon. E Malesi (PM) delivered on 5th July 2022 in Kakamega MELC No. 37 of 2021, a land dispute between neighbours over parcels Butsotso/Esumeyia/1979 and 1980. The subordinate court had earlier ordered the Land Registrar and County Surveyor to ascertain and fix the disputed boundaries; surveys were conducted and reports filed in December 2021. The parties then filed competing applications - the respondent seeking to stop the boundary establishment and the appellants seeking to strike out that application. Rather than determine them, the trial magistrate declared all post-institution steps null and void, ordered removal of new boundary features, and directed parties to prepare for hearing, invoking the overriding objective. The appellants argued the magistrate erred in failing to determine the applications on merit, in setting aside the earlier ruling without basis, and in ignoring their submissions; they sought remittal of the two applications. The respondent maintained the survey was procedurally flawed and that the ruling was sound case management. Ohungo J applied the settled principle that an appellate court will not interfere with discretionary decisions absent misdirection, noted the parties' misuse of interim orders and interlocutory applications to stall the suit, and held that Paragraph 32 of the ELC Practice Directions empowered the magistrate to resolve interlocutory applications without hearing them on the merits. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the magistrate erred in declining to determine the pending applications on their merits

Holding

No error; the magistrate properly exercised case-management discretion to reset the parties to their position at institution of the suit

Reasoning

The parties had filed at least four applications, none heard inter partes, and the suit had not been set down for hearing. Both sides were misusing interim orders and interlocutory applications to stall progress. Paragraph 32 of the Practice Directions empowered the magistrate to resolve the applications without hearing them on the merits, in furtherance of the overriding objective of just, expeditious, proportionate and accessible resolution of disputes.

p. 5
02

Whether the magistrate's order declaring post-institution steps null and void amounted to a suo moto review of the court's earlier orders

Holding

The order was a legitimate case-management direction, not a review; the case can only be determined once heard, with parties free to rely on the survey reports as evidence

Reasoning

The court held both parties' positions were wrong: the respondent sought to forestall boundary determination via interim orders while the appellants treated the survey reports as a determination of the dispute. The reports can only be considered alongside evidence tendered at hearing, with each party free to interrogate them and avail parallel reports.

p. 5

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong due to misdirection, reliance on wrong matters, or failure to consider relevant matters
  • Under Paragraph 32 of the Practice Directions on Proceedings in the Environment and Land Courts, the court may resolve interlocutory applications without hearing them on the merits where parties cannot agree

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Environment and Land Court ActSection 26(3) and (4)
  • Magistrates' Courts ActSection 9(a)
  • Civil Procedure ActSection 1A
  • Land Registration ActSections 16 and 19
  • Practice Directions on Proceedings in The Environment and Land Courts, and on Proceedings Relating to The Environment and The Use and Occupation Of, And Title to Land and Proceedings in Other Courts (Gazette Notice No. 5178 of 2014)Paragraph 32

Cases cited (1)

  • Mombasa Cement Limited v Kitsao & 34 others
    (Civil Appeal E016 of 2020) [2022] KECA 562 (KLR) (24 June 2022)

    Principles governing interference with an inferior court's exercise of discretion

On appeal from
Chief Magistrate's Court at Kakamega
Kakamega MELC No. 37 of 2021
Jurisdiction invoked
Appeal from the subordinate court pursuant to Section 26(3) and (4) of the Environment and Land Court Act, 2011 and Section 9(a) of the Magistrates' Courts Act, 2015

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, "Makokha & 3 others v Munyendo", Case Analysis (2023). Environment and Land Appeal E024 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17937/eng@2023-06-13

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