Chesebe (Being the personal representative of the Estate of Ndiwa Chesebe Meini) v Sikuku (Environment and Land Appeal 01 of 2019) [2024] KEELC 3922 (KLR)
The bottom line
#The Environment and Land Court in Bungoma dismissed a bid to review a land decree, confirming a court that has delivered judgment cannot reopen the matter.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC could review the subordinate court's decree
The court was functus officio having fully determined the appeal, and lacked jurisdiction to review a trial court order; grievances lay on appeal only.
The court noted its appellate mandate is to re-evaluate the evidence and determine whether the trial magistrate's conclusions stand. Having delivered its judgment on 23rd March 2022 fully disposing of the appeal, nothing remained before it. Any complaint about the decree issued by the subordinate court on 21st July 2022 had to be pursued before that court or on appeal, not by an application before the appellate court.
Whether the applicant had proper audience before the court
The applicant was a stranger to the proceedings: the notice to act in person was filed without leave or consent as required by Order 9 Rule 9, and no leave was obtained to substitute the original party via the power of attorney.
Judgment in the trial court was entered on 5th May 2015 while the party was represented by M/S Simiyu Wafula & Company Advocates. The notice to act in person dated 5th January 2016 was therefore ineffective without a court order or consent. Further, the process by which Kipyegon Ndiwa Chesebe assumed the applicant's role was unclear, as substitution permission was never sought or obtained as mandated by law.
Legal principles established
#- A first appellate court becomes functus officio once it fully determines the appeal and cannot review orders of the trial court
- A party who previously engaged an advocate may not act in person after judgment without leave of court or consent under Order 9 Rule 9
Court orders
#- 1.The application dated 17th August 2023 is dismissed with costs to the Respondent
- On appeal from
- Principal Magistrate's Court, Kimilili
- Kimilili PMCC Case No. 2 of 2011
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under the ELC Act over appeals from subordinate courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chesebe (Being the personal representative of the Estate of Ndiwa Chesebe Meini) v Sikuku (Environment and Land Appeal 01 of 2019) [2024] KEELC 3922 (KLR)", Case Analysis (2024). ELC Appeal No. 01 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3922/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.