Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Appeal 16 of 2022· [2023] KEELC 20082 (KLR)

Kimotho v Kinuriu & 2 others

Environment and Land Court
28 September 2023
4,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed magistrates can finish old land tribunal cases, but sent this eviction application to a different magistrate.

What this practically means

#

Executive summary

#
The appellant appealed against a ruling of Hon. S. N. Mwangi SRM delivered on 19th July 2022 in Murang'a CMCC LDT Case No. 30 of 2021, dismissing his Notice of Motion dated 25th March 2022 which sought the 1st respondent's eviction from parcel LOC.20/KAMBIRWA/1896, demolition of boundary structures, supervised eviction and costs. The trial court had held it lacked jurisdiction, the dispute being a boundary dispute reserved to the Land Registrar under Section 18(2) of the Land Registration Act, and that the Land Disputes Tribunal Act had been repealed without transitional provision, and that the Surveyor's report of 18th August 2021 had not been adopted as a judgment. Gacheru J traced the matter's history from the defunct Kiharu Land Disputes Tribunal (award adopted on 13th January 2012), through contempt proceedings against the Surveyor and Land Registrar, the reports of 2016, the ruling of 11th June 2019, and the appeal in Murang'a ELCA No. 12 of 2019 decided on 14th May 2020, which set aside that ruling and ordered fresh boundary reports and a fresh hearing. The report of 18th August 2021 was adopted as a judgment on 22nd January 2022. The High Court held that under Section 30 of the Environment and Land Court Act and Gazette Notice No. 16268, the trial court had jurisdiction to conclude the transitional matter, and erred in holding otherwise. However, the Court found the impugned application res judicata the similar application of 4th November 2015, but since it was a post-judgment enforcement application, it allowed the appeal, set aside the ruling of 19th July 2022, and remitted the application to a different magistrate, with costs of the appeal to the appellant.

Key legal issues

#
01

Jurisdiction of the magistrates' court over the application post-repeal of the Land Disputes Tribunal Act

Holding

The trial court had jurisdiction; the matter was a live matter commenced before the Environment and Land Court Act came into force and was governed by the transitional provisions in Section 30 of that Act and the Chief Justice's Practice Directions

Reasoning

The dispute originated in the Kiharu Land Disputes Tribunal in 2011, before the ELC Act commenced on 30th August 2011. Section 30 preserved pending proceedings, and Gazette Notice No. 16268 directed that transferred proceedings continue before the magistrates' courts. The application sought to enforce an adopted report, not to adjudicate a fresh boundary dispute, so Section 18(2) of the Land Registration Act did not oust the trial court's jurisdiction.

02

Whether the impugned application was res judicata the application of 4th November 2015

Holding

The Court found the impugned application res judicata the earlier application, but noted the later application was post-judgment and sought to enforce the adopted report, so it should be placed before a different magistrate

Reasoning

The prayers in the two applications were substantially similar, between the same parties litigating under the same title, and the earlier application had been finally determined. However, the impugned application was a post-judgment enforcement application, and the ruling adopting the report was silent on the encroachment, so the appropriate course was remittal to a different magistrate.

p. 7
03

Role of a first appellate court and interference with discretion

Holding

The first appellate court re-evaluates, re-assesses and re-analyses the evidence under Section 78 of the Civil Procedure Act, but will not interfere with discretionary decisions absent established errors

Reasoning

The Court rehearsed the settled principles from Selle vs Associated Motor Boat Co, Peter M. Kariuki v Attorney General, Abok James Odera, Apungu Arthur Kibira and United India Insurance, holding that interference requires misdirection in law, misapprehension of facts, wrong considerations, or a plainly wrong decision.

Legal principles established

#
  • Jurisdiction is conferred by law, determined by the substance of the claim and relief sought, not by pleadings
  • Under Section 30 of the Environment and Land Court Act and the Chief Justice's Gazette Notice No. 16268, proceedings pending before magistrates' courts transferred from defunct Land Disputes Tribunals were to continue and be concluded by those courts
  • A first appellate court may only interfere with a discretionary decision on established grounds such as misdirection in law, misapprehension of facts, or that the decision is plainly wrong

Court orders

#
  1. 1.The appeal is allowed and the orders issued on 19th July 2022 are set aside
  2. 2.The Notice of Motion Application dated 25th March 2022 is placed before a different Magistrate other than Hon. S. Mwangi SRM for hearing and determination
  3. 3.Costs of the appeal to the Appellant

Authorities

#

Legislation

  • Environment and Land Court ActSection 30
  • Land Disputes Tribunal ActSection 3(1)
  • Land Registration ActSections 18(2) and 18(3)
  • Civil Procedure ActSections 7, 27 and 78
  • Constitution of KenyaArticle 159(d)
  • Kenya Gazette Notice No. 16268Practice Directions (direction No. 6)

Cases cited (10)

  • Mary Njoki Simon vs Monicah Wanjiru Wangonya
    {2020} eKLR

    Transitional framework guaranteed by Section 30 of the Environment and Land Court Act

  • Samuel Njagi M'nyamba vs Gilbert Ndwiga Mwangie
    {2019} eKLR

    An order of eviction can be issued to put a litigant in possession of his land or property

  • Judicial Service Commission & Secretary, Judicial Service Commission v Kalpana H. Rawal
    [2015] eKLR

    The right of appeal is a constitutional and statutory right

  • Selle vs Associated Motor Boat Co.
    {1968} EA 123

    Duty of a first appellate court to re-evaluate and re-assess the evidence

  • Peter M. Kariuki v Attorney General
    [2014] eKLR

    First appellate court must reconsider the evidence and draw its own independent conclusions

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

    Primary role of a first appellate court to re-evaluate, re-assess and reanalyse the record

  • Apungu Arthur Kibira v Independent Electoral & Boundaries Commission & 3 others
    [2019] Eklr

    An appellant must show a discretionary decision was based on a whim, was prejudicial or capricious

  • United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd
    (1985) EA 898

    Circumstances in which an appellate court may interfere with a discretionary decision (Madan, JA)

  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others
    [2018] eKLR

    Jurisdiction is conferred by law; substance of claim and relief determines jurisdictional competence

  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR)

    Five conjunctive elements of res judicata under Section 7 of the Civil Procedure Act

On appeal from
Chief Magistrate's Court at Murang'a (Hon. S. N. Mwangi SRM)
Murang'a CMCC LDT Case No. 30 of 2021
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act over appeals from the magistrates' court in land matters

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimotho v Kinuriu & 2 others", Case Analysis (2023). Environment and Land Appeal 16 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20082/eng@2023-09-28

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