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ELCAllowedNotice of Motion dated 27th February 2024· [2024] KEELC 4809 (KLR)

Byrnes alias Robin Grahame Grahame Byrnes (Suing on behalf and as the Treasurer and Committee Member respectively of Robin Nest Opharnage) v Jajofa Copany Limited & 4 others (Miscellaneous Civil Application E002 of 2024) [2024] KEELC 4809 (KLR)

Environment and Land Court
10 June 2024
2,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court let a delayed land appeal proceed, ruling that failed applications filed in the wrong court don't block fresh attempts.

What this practically means

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Executive summary

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By Notice of Motion dated 27th February 2024, the applicants sought leave to appeal out of time against the judgment of Hon. Odawo, Principal Magistrate, in Bungoma CMCC No. 216B of 2019 delivered on 24th August 2023, in a dispute over ownership of Land Parcel No. East Bukusu/North Kanduyi/2210. The applicants deposed that judgment was entered without notice, leaving them unable to appeal within the statutory thirty days. The respondents opposed, arguing the application was res judicata because a similar application in Bungoma High Court Miscellaneous Application No. E014 of 2023 had been dismissed for want of prosecution, that the applicants lacked locus standi, that the delay was unexplained, and that they would suffer prejudice after fourteen years of litigation. The court framed three issues: res judicata, leave to appeal out of time, and costs. On the first, it held the doctrine inapplicable because the earlier High Court application was not properly before a court competent to determine a land dispute, which falls under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. On the second, applying the Leo Sila Mutiso principles, the court found the five-month delay not inordinate, the draft memorandum of appeal arguable, and no prejudice that costs could not compensate, noting the respondents remain in possession of the suit land. The application was allowed on 10th June 2024: the appeal to be filed within fourteen days, a record of appeal filed and served within thirty days, and costs of the application to be costs in the intended appeal.

Key legal issues

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01

Whether the application is res judicata given a prior similar application before the High Court

Holding

Not res judicata; the prior application was before a court without jurisdiction over land disputes.

Reasoning

The dispute concerns ownership of Land Parcel No. East Bukusu/North Kanduyi/2210, a matter within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) and Section 13 of the ELC Act. Since the earlier High Court application was not properly before a competent court, an essential ingredient of res judicata under Section 7 of the Civil Procedure Act is absent.

p. 4
02

Whether leave should be granted to appeal out of time

Holding

Leave granted; the five-month delay was not inordinate, the draft appeal raises arguable issues, and no prejudice incapable of compensation by costs would be suffered.

Reasoning

Applying the Leo Sila Mutiso principles, the court found the five-month delay explained by lack of notice of the judgment, held it not inordinate, noted the draft memorandum of appeal raises arguable issues without delving into merits, and found the respondents - who remain in possession of the suit land - sufferable of no prejudice not compensable by costs.

p. 5

Legal principles established

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  • Res judicata does not apply where the former application was filed before a court lacking jurisdiction over the dispute.
  • The court has wide discretion to enlarge time for filing an appeal, exercisable judicially upon consideration of the length and explanation for delay, arguability of the appeal, and prejudice to the respondent.

Court orders

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  1. 1.Leave to appeal out of time granted; the appeal be filed within fourteen (14) days from the date of the ruling
  2. 2.The Applicant to file and serve a Record of Appeal within thirty (30) days from the date of the Ruling
  3. 3.Costs of the application shall be costs in the intended appeal

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 7
  • Civil Procedure Act Cap 21Section 79G
  • Civil Procedure Act Cap 21Section 95
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Evidence ActSection 5

Cases cited (7)

  • Communications Commission of Kenya & 5 Others vs. Royal Media Services & 5 others
    (2014) eKLR
  • John Florence Maritime Services vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2021) eKLR
  • Christopher Kenyariri vs Salama Beach
    (2017) eKLR
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso vs Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
On appeal from
Bungoma Chief Magistrate's Court (Principal Magistrate)
Bungoma CMCC No. 216B of 2019
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Sections 79G and 95 of the Civil Procedure Act

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, "Byrnes alias Robin Grahame Grahame Byrnes (Suing on behalf and as the Treasurer and Committee Member respectively of Robin Nest Opharnage) v Jajofa Copany Limited & 4 others (Miscellaneous Civil Application E002 of 2024) [2024] KEELC 4809 (KLR)", Case Analysis (2024). Notice of Motion dated 27th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4809/eng@2024-06-10

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