Joseph Koome M'Mukira v Charles Magiri & another
The bottom line
#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
#Executive summary
#Key legal issues
#Leave to appeal out of time
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.
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.
Stay of execution and temporary injunction pending appeal
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.
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.
Effect of filing an appeal in a court without jurisdiction
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.
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.
Legal principles established
#- 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
#- 1.Leave granted for the intended appeal to be filed and served within seven days
- 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.Orders to lapse after one year from the date of the ruling
- 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.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- HMI v KBH (Civil Appeal (Application) E109 of 2022) [2026] KECA 1498 (KLR)[2026] KECA 1498 (KLR)24 Jul 2026
Cite this brief
#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.