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ELCAllowedApplication dated 22.11.2023 (case number not stated in judgment)· [2024] KEELC 1230 (KLR)

Joseph Koome M'Mukira v Charles Magiri & another

Environment and Land Court
6 March 2024
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court excused a law firm's filing error, allowed a late land appeal, and froze eviction and sale of the disputed land.

What this practically means

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Executive summary

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This was an application dated 22.11.2023 in the Environment and Land Court at Meru seeking stay of execution of a judgment dated 13.7.2023, a temporary injunction, leave to appeal out of time, and inhibition of title to L.R Kiirua/Naari-Maitei/472, pending an intended appeal. The applicants explained that their appeal and related applications were filed in the High Court instead of the Environment and Land Court, and the error was discovered only when the High Court directed them to move to the correct forum, by which time the 30-day window under Section 79G of the Civil Procedure Act had lapsed. They alleged the respondents demolished their church on the land and threatened total eviction. The respondents opposed, arguing sub-judice (a similar application pending in H.C Civil Appeal No. E128 of 2023), that the eviction had been lawfully executed under court order so there was nothing to stay, and that an appeal filed in a court without jurisdiction is a nullity. The court held that mistakes of counsel should not be visited upon innocent litigants, following Belinda Murai v Amos Wainaina, and granted leave to appeal out of time. On stay and injunction, the court held that evictions must comply with Sections 152A-F of the Land Act and that there was no evidence the respondents gave the statutory three months' notice, so there was still something to stay. Substantial loss and an arguable appeal were demonstrated. The court granted leave to file the appeal within seven days, and issued a temporary injunction and order of inhibition for one year, conditional on a written undertaking as to costs of Kshs.500,000 within three days. Costs were in the cause.

Key legal issues

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01

Leave to appeal out of time

Holding

Leave granted because the delay was occasioned by the applicants' law firm filing the appeal in the wrong court, a mistake not attributable to the litigants.

Reasoning

Under Section 79G of the Civil Procedure Act the court may admit an appeal out of time upon good and sufficient cause. The applicants filed in the High Court on 10.8.2023 and only learned of the jurisdictional error on 14.11.2023. The court held that mistakes of counsel, however experienced, should not close the doors of justice, following Belinda Murai v Amos Wainaina, and that the litigants should not be denied their right of appeal because of their law firm's jurisdictional error.

p. 3
02

Stay of execution and temporary injunction pending appeal

Holding

Granted. Although the respondents asserted the eviction had already occurred, the court held there was still something to stay because the eviction did not comply with the Land Act.

Reasoning

The respondents relied on an order for OCS security and contended the applicants were already evicted so nothing remained to stay. The court held that evictions must comply with Sections 152A-F of the Land Act, including three months' statutory notice, and there was no evidence of compliance; the trial court's notice did not absolve the respondents. Substantial loss and an arguable appeal were demonstrated, warranting preservation of the suit land.

p. 3
03

Effect of filing an appeal in a court without jurisdiction

Holding

An appeal filed in the wrong forum is not necessarily fatal; the applicants' mistake was excused and leave to file in the correct court granted.

Reasoning

The respondents argued, citing Equity Bank v Mutie, that an appeal filed in a court without jurisdiction is a nullity and cannot be transferred. The court noted Article 162(2)(b) delineates the jurisdiction of the Environment and Land Court from the High Court, but was also aware of the holding in Albert Chaurembo Mumba, and in the interest of justice found the prayers meritorious rather than striking down the intended appeal as a nullity.

p. 3

Legal principles established

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  • An eviction process must comply with the statutory notices under the Land Act; failure to give the requisite notice renders the eviction liable to be stayed/restrained.
  • A litigant should not suffer the consequences of a jurisdictional error committed by their law firm; mistakes of counsel should not be visited upon innocent litigants.

Court orders

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  1. 1.Leave granted for the intended appeal to be filed and served within seven days
  2. 2.Temporary injunction and order of inhibition granted restraining the respondents, their agents, servants or employees from selling, transferring, leasing, letting, evicting or interfering with the applicant's use, occupation, possession, developments or access to the suit premises, pending hearing and determination of the intended appeal
  3. 3.Orders to lapse after one year from the date of the ruling
  4. 4.Applicants ordered to provide and file a written undertaking as to costs of Kshs.500,000 within three days, failing which the temporary orders shall lapse
  5. 5.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 18
  • Civil Procedure RulesSection 40
  • Land Registration ActSection 68(1) & (2)
  • Land ActSections 152A, B, C, D, E and F

Cases cited (16)

  • Giella v Cassman Brown
    (1973) E.A 358
  • Mrao Ltd v First American Bank of (K) Ltd & others
  • CBK & another v. Uhuru Highway Development Ltd and others
  • Tritex Industries Ltd
  • National Housing Corporation & another
    (2014) eKLR
  • Thomas Mungiria & 9 others v Joseph Mutuma & 4 others
    Meru HCC No.12 of 2010
  • Naibor Ajijik Group Ranch v Agriculture Development Corporation & others
    (2016) eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No. Nai 255 of 1997
  • Dilpack (K) Ltd v William Muthama Kitonyi
    (2018) eKLR
  • Henry Kigen & others v Baringo County Governor & others
    (2020) eKLR
  • Belinda Murai & others v Amos Wainaina
    (1978) eKLR
  • Equity Bank Ltd v Bruce Mutie Mutaka t/a Diani Tour & Travel
    (2016) eKLR
  • Albert Chaurembo Mumba and 7 others v Maurice Munyao & 148 others
    (2019) eKLR
  • Madhu Paper International Limited v Kerr
    (1985) KLR 840
  • Stanley Kagethe v Tony Keter & 5 others
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (jurisdiction of the Environment and Land Court) and Section 79G of the Civil Procedure Act (extension of time to appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Koome M'Mukira v Charles Magiri & another", Case Analysis (2024). Application dated 22.11.2023 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1230/eng@2024-03-06

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