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ELCDismissedNot stated in the judgment (Memorandum of Appeal dated 30/03/2023)· [2024] KEELC 1340 (KLR)

Amoth & 2 others v Duncan & 10 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 1340 (KLR)

Environment and Land Court
14 March 2024
AKA. Y. Koross
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a ruling allowing a land survey and adding a sugar company to a family land dispute, dismissing the appeal.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya against a ruling of the learned trial magistrate delivered on 13/07/2023. The ruling had allowed an application filed on 11/01/2023 by the 2nd respondent, a self-represented plaintiff, seeking survey and confirmation of boundaries over undisclosed parcels of land and the joinder of West Kenya Sugar Company as a defendant, with each party bearing its own costs. The appellants, defendants in the trial suit represented by Wasuna & Co. Advocates, appealed on seven grounds condensed to four, though two were treated as abandoned for not being advanced in submissions. Two issues fell for determination: whether the absence of annexures to the 2nd respondent's supporting affidavit rendered the application fatal, and whether the trial magistrate erred in ordering joinder. On the first, the court held that neither Order 19 of the Civil Procedure Rules nor the Oaths and Statutory Declarations Act requires a deponent to attach annexures; Rule 9 of the Oaths and Statutory Declaration Rules applies only to exhibits already annexed. The appellants' grounds of opposition raised only questions of law and did not rebut the affidavit's averments, which therefore stood. On the second, the court found the joinder proper under Order 1 Rule 10(2); although West Kenya Sugar Company ought to have been served and heard, the omission was not fatal as it can still plead and seek to be struck out. Preliminary issues were resolved against the appellants: the jurisdiction argument based on Sections 18 and 19 of the Land Registration Act was raised only in submissions and disregarded, unavailed authorities were disregarded, and the 2nd respondent's further evidence was similarly disregarded. The appeal was dismissed and the trial court's ruling upheld, with each party bearing its own costs.

Key legal issues

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01

Whether absence of annexures to the supporting affidavit rendered the application fatal

Holding

The ground fails; neither Order 19 of the Civil Procedure Rules nor the Oaths and Statutory Declarations Act places a burden on a deponent to attach annexures, and Rule 9 of the Oaths and Statutory Declaration Rules applies only to exhibits already annexed

Reasoning

The court examined Order 19 Rules 3, 4, 5 and 7 of the Civil Procedure Rules, which set out the essential ingredients of an affidavit and implore the court to disregard procedural technicalities. Rule 9 of the Oaths and Statutory Declaration Rules governs the sealing, commissioning and serialization of exhibits, not the attachment of annexures. The appellants filed grounds of opposition raising only matters of law and did not rebut the deponent's averments by replying affidavit, so the averments stood unchallenged.

p. 4
02

Whether the order of joinder of West Kenya Sugar Company was erroneous

Holding

The joinder order was properly made under Order 1 Rule 10(2); although it would have been proper to serve and hear West Kenya Sugar Company, the failure was not fatal since it can still plead and seek to be struck out

Reasoning

Order 1 Rule 10(2) permits joinder at any stage, on the court's own motion or on application, where a person's presence is necessary to effectually and completely adjudicate on all questions. Order 1 Rule 3 defines proper defendants and Rules 5 and 7 allow joinder of multiple defendants where common questions arise. The plaint sought compensation for crop harvest and the 2nd respondent alleged the appellants fraudulently leased the suit properties to West Kenya Sugar Company, making its presence relevant to the suit.

p. 6
03

Scope of a first appeal against a discretionary interlocutory ruling

Holding

As a first appeal, the court re-evaluates the evidence and will not interfere with discretion absent the established grounds of interference

Reasoning

The court adopted the test in United India Insurance Co. Ltd vs East African Underwriters (Kenya) Ltd, that an appellate court interferes with a discretionary decision only where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take relevant ones into account, or where the decision is plainly wrong. Applying that standard, no such ground was established against the trial magistrate's ruling.

p. 3

Legal principles established

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  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take account of relevant considerations, or the decision is plainly wrong
  • Rule 9 of the Oaths and Statutory Declaration Rules governs exhibits annexed to affidavits and does not impose a requirement that annexures be attached to every affidavit
  • Averments in a supporting affidavit not rebutted by a replying affidavit stand as true, since grounds of opposition address only issues of law
  • Joinder of a party is proper where the presence of that party will enable the court to effectually and completely adjudicate upon and settle all questions in the suit
  • Failure to serve a joined party before joinder is not fatal where that party will have an opportunity to present its pleadings and may seek to be struck out
  • Parties are bound by the grounds in their memorandum of appeal and cannot introduce new grounds or new evidence through submissions

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The ruling of the learned trial court delivered on 13/07/2023 allowing the 2nd respondent's application filed on 11/01/2023 is upheld
  3. 3.Each party shall bear their respective costs of the appeal
On appeal from
Magistrates' Court (trial court)
Suit filed by plaint dated 5/03/2019 (number not stated)
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the learned trial magistrate

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, "Amoth & 2 others v Duncan & 10 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 1340 (KLR)", Case Analysis (2024). Not stated in the judgment (Memorandum of Appeal dated 30/03/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1340/eng@2024-03-14

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