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ELCPartially AllowedKiambu Chief Magistrate Court MCL & E Case No E045 of 2021 (appeal thereto)· [2024] KEELC 4573 (KLR)

Catherine Wambui Karekezi & 2 Others v Mary Muthoni Gitau & 2 Others

Environment and Land Court
5 June 2024
4,842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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 Thika (B M Eboso J) against a ruling of Hon. G. Omodho, Principal Magistrate, delivered on 3/11/2021 in Kiambu MCL & E Case No E045 of 2021, a land dispute over LR Number 7838 (IR 10034/1), Tigoni, registered in the name of the late Prof James Mbugua Waithaka. The impugned ruling allowed the respondents' application for interlocutory injunctive and inhibitory reliefs and dismissed the appellants' preliminary objection and striking-out application. The appellants raised ten grounds. The ELC identified five issues. It found: (i) the lower court erred in determining the respondents' application dated 3/2/2021, which was not among the items listed in the disposal directions of 18/8/2021, and without affording the appellants a hearing; (ii) the lower court erred in treating that application as unopposed when a replying affidavit sworn on 1/3/2021 had been filed and served; (iii) the lower court dismissed the preliminary objection and the application dated 14/7/2021 without considering their merits, deferring the substantive issues pending determination of Prof Waithaka's mental capacity, when it should simply have deferred its ruling; (iv) the court declined to make a merit pronouncement on whether the appellants were non-suited, leaving that for the lower court; and (v) the preliminary objection was opposed by submissions, but the application dated 14/7/2021 was not properly opposed absent a replying affidavit, grounds of opposition or leave. Allowing the appeal, the court wholly set aside the ruling and directed that the three items be heard afresh by a different magistrate, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the lower court could dispose of the respondents' application dated 3/2/2021

Holding

The application was not listed in the 18/8/2021 disposal directions; determining it without hearing the appellants was erroneous

Reasoning

The directions of 18/8/2021 confined the ruling to the preliminary objection dated 11/3/2021 and the application dated 14/7/2021. The application dated 3/2/2021 was not among the items canvassed for disposal, yet the lower court determined it, and although a replying affidavit had been filed, the appellants had not filed submissions. Deciding it without affording the appellants a hearing violated their right to be heard and constituted an error.

p. 9
02

Whether the application dated 3/2/2021 was unopposed

Holding

The lower court's finding that the application was unopposed was factually incorrect; it was opposed by a replying affidavit sworn on 1/3/2021

Reasoning

The record showed the appellants filed a replying affidavit by Catherine Wambui Karekezi on 1/3/2021, which was served on the respondents' advocates on 4/3/2021. The trial court's statement that the application was 'not opposed' was therefore factually wrong, and the court proceeded to dispose of the application on that faulty premise, compounding the error.

p. 9
03

Whether dismissal of the preliminary objection and the application dated 14/7/2021 without considering their merits was proper

Holding

The lower court never considered the merits; the proper course was to defer the ruling pending determination of Prof Waithaka's mental capacity, not to dismiss

Reasoning

The trial court held it premature to determine locus standi pending the outcome of proceedings on the mental soundness of the registered owner, yet it went on to dismiss the preliminary objection and striking-out application. Having deferred the substantive issues, it should have deferred the ruling to a future date rather than dismissing the two items without any merit consideration. That was a clear error.

p. 10
04

Whether the preliminary objection and application dated 14/7/2021 were opposed

Holding

The preliminary objection was opposed through submissions; the application dated 14/7/2021 was not properly opposed absent a replying affidavit, grounds of opposition or leave

Reasoning

A preliminary objection requires only submissions to oppose it, and the respondents filed submissions opposing it. However, for an application raising factual issues, a replying affidavit or grounds of opposition is required; the respondents filed only Part E of their written submissions with no indication of leave to argue law only. The lower court therefore erred in finding the application dated 14/7/2021 properly opposed.

p. 10

Legal principles established

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  • A preliminary objection does not require a replying affidavit or grounds of opposition; submissions opposing it suffice to make it opposed
  • A party challenging factual aspects of an application must file a replying affidavit or grounds of opposition
  • A first appellate court must re-evaluate the evidence afresh and reach its own conclusions

Court orders

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  1. 1.The appeal succeeds
  2. 2.The impugned ruling dated 3/11/2021 is wholly set aside
  3. 3.The respondents' application dated 3/2/2021, the appellants' preliminary objection dated 11/3/2021 and the appellants' application dated 14/7/2021 shall all be heard afresh by a different magistrate
  4. 4.Each party to bear their respective costs of the appeal
On appeal from
Kiambu Chief Magistrate Court
MCL & E Case No E045 of 2021
Jurisdiction invoked
First appeal under Section 75(1)(h) of the Civil Procedure Act and Order 43 rule 1(a), (b) and (c) of the Civil Procedure Rules, 2010

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, "Catherine Wambui Karekezi & 2 Others v Mary Muthoni Gitau & 2 Others", Case Analysis (2024). Kiambu Chief Magistrate Court MCL & E Case No E045 of 2021 (appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4573/eng@2024-06-05

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