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ELCDismissedMaralal SPMCC ELC Appeal (judgment on appeal from Maralal SPMCC ELC No. E010 of 2021)· [2024] KEELC 473 (KLR)

Lewarani v Jitahidi Women Group through Agnes Muthoni (Environment and Land Appeal E027 of 2022) [2024] KEELC 473 (KLR)

Environment and Land Court
1 February 2024
3,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that one authorised official can sue for a self-help group, and county land records win in ownership disputes.

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 Nyahururu against the judgment of Hon. H.S. Wanyanga (SRM) dated 01.11.2022 in Maralal SPMCC ELC No. E010 of 2021, in which the trial court allowed Jitahidi Women Group's claim (through its Chairlady, Agnes Muthoni Githumbi) to Plot 144P – Yare area against Jonathan Leparleen Lewani, granting declaration of trespass, vacation, and permanent injunction but disallowing general damages. The Appellant, who claimed Plot 144P was a sub-division of his own Plot 77P/B (itself a sub-division of Plot 31P), raised nine grounds condensed into three issues. First, on competence, the court held there is no legal requirement that all officials of an unincorporated self-help group be joined; any authorized official may sue or defend for the group absent dissent, so the suit was not fatally defective. Second, on the merits, the court re-evaluated the evidence as a first appellate court, applying Selle, Peters, Watt v Thomas and Kapsiran Clan. It found no credible evidence of bias in the advisory report of the Ag. Chief Officer of Lands, Housing and Physical Planning of the County Government of Samburu, which stated Plot 144P was not a sub-division of Plot 77P/B; the County, as successor to the defunct Town Council of Maralal, was the natural custodian of allocation records. The trial court, having seen and heard the witnesses, was entitled to believe the Respondent's case and find the claim proved on a balance of probabilities. Third, on costs, the court applied the proviso to Section 27 of the Civil Procedure Act, holding that costs follow the event. The appeal was dismissed in its entirety, the trial judgment and decree affirmed, and the Respondent awarded costs of the appeal. Judgment dated, signed at Nyahururu and delivered via Microsoft Teams on 1 February 2024.

Key legal issues

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01

Competence of a suit by an unincorporated self-help group

Holding

The suit was not fatally defective; it was properly instituted through the Chairlady, and there is no legal requirement that all officials of an unincorporated body be joined.

Reasoning

The Respondent is a self-help group registered under the Ministry of Labour, Social Security and Services and is not a body corporate. It sued through its Chairlady, Agnes Muthoni Githumbi. The court held that any authorized official may institute or defend proceedings for the group provided there is no dissent among members or officials, and joining all officials is unnecessary.

p. 6
02

Whether the Respondent proved its claim to Plot 144P

Holding

Yes; the trial court was entitled to rely on the County Government's advisory report and to believe the Respondent's witnesses, proving title/allottee status on a balance of probabilities.

Reasoning

The allocating authority was the defunct Town Council, succeeded by the County Government of Samburu, making the County the custodian of allocation records. The report of the Ag. Chief Officer dated 23.05.2022 showed Plot 144P was not a sub-division of Plot 77P/B. No evidence established bias, double allocation, or that the trial court misapprehended the evidence.

p. 6
03

Costs of the appeal

Holding

Costs awarded to the successful Respondent following the event under the proviso to Section 27 of the Civil Procedure Act.

Reasoning

Although costs are discretionary, the general rule is that costs follow the event and a successful party should ordinarily be awarded costs absent good reason to depart. The court found no such reason, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for the trial court's advantage of seeing and hearing the witnesses
  • An unincorporated self-help group may sue through any authorized official; it is not necessary that all officials be joined as parties
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court directs otherwise for good reason

Court orders

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  1. 1.The appeal be and is hereby dismissed
  2. 2.The judgment and decree of the trial court dated 01.11.2022 in Maralal SPMCC ELC No. E010 of 2021 be and is hereby affirmed
  3. 3.The Respondent is hereby awarded costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 27 (proviso)

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters -vs- Sunday Post Ltd
    [1958] EA 424
  • Watt -vs- Thomas
    [1947] A.C. 424
  • Kapsiran Clan -vs- Kasagur Clan
    [2018] eKLR
  • Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Maralal (SPMCC ELC No. E010 of 2021)
Maralal SPMCC ELC No. E010 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (appeal against judgment and decree of the Senior Resident Magistrate)

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, "Lewarani v Jitahidi Women Group through Agnes Muthoni (Environment and Land Appeal E027 of 2022) [2024] KEELC 473 (KLR)", Case Analysis (2024). Maralal SPMCC ELC Appeal (judgment on appeal from Maralal SPMCC ELC No. E010 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/473/eng@2024-02-01

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