Muriithi v Kanyingi (Environment and Land Appeal 86 of 2023) [2024] KEELC 4966 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's appeal, upholding a ruling that he sold two plots to the respondent over twenty years ago.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court had jurisdiction to hear the suit after an alleged earlier dismissal, and whether a pending ELC suit barred the trial
The suit was never dismissed; the application for dismissal was refused by ruling dated 26.05.2021. The pendency of a later ELC suit did not bar the earlier trial court suit; it was for the appellant to seek a stay of the later suit under Section 6 of the Civil Procedure Act.
Perusal of the original record showed the notice of motion of 22.03.2021 seeking dismissal for want of prosecution was dismissed on 26.05.2021 with no order as to costs, so the suit remained live. On the purported similar suit filed in 2021, the trial suit predated it; the statutory duty to seek a stay of the later suit lay on the appellant, not on the trial court to stay its own earlier-seized matter.
Whether the sale agreements were null and void for want of Land Control Board consent
No, the ground failed because the appellant did not prove the suit property was agricultural land in a land-controlled area.
The respondent bought two plots each measuring 50 x 100 feet. There was no evidence before the trial court demonstrating the land was agricultural or located in a controlled area, and it was upon the appellant, who asserted invalidity, to adduce that evidence. The plea of want of consent therefore had no evidentiary foundation.
Whether the trial court erred in finding the sale agreements existed and in believing the respondent
No; credibility findings of a trial court that saw and heard the witnesses cannot be lightly disturbed.
The parties gave contradictory accounts: the respondent said she bought two plots in 1995 and 2007, paying through an advocate who later died; the appellant denied any sale and receipt of payment. The trial court, with the advantage of observing the witnesses, found the respondent credible. The appellate court noted the appellant's inaction for over 20 years, absence of any eviction suit, and failure to report alleged forgery to police, and found no basis to interfere.
Whether dismissal of the appellant's counterclaim was erroneous
No; the counterclaim was defectively pleaded under Order 2 rules 1-4 of the Civil Procedure Rules, 2010.
The appellant sought only costs and unspecified damages without pleading material facts, and did not even seek eviction of the respondent in possession. Without factual pleading entitling him to damages, the counterclaim could not succeed, and the trial court was right to dismiss it as a sham.
Costs of the appeal
The respondent, as successful party, was awarded costs of the appeal.
Costs are discretionary but follow the event under the proviso to Section 27 of the Civil Procedure Act. Citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to depart from the general rule and awarded the respondent the costs of the appeal.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the entire evidence and draw its own conclusions, while making due allowance for the trial court's advantage of seeing and hearing the witnesses.
- An appellate court will not lightly interfere with a trial court's findings on credibility of witnesses unless there are good grounds for doing so.
- Costs follow the event; a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.
- Where two suits between the same parties are pending, it is for the party facing the later suit to seek a stay under Section 6 of the Civil Procedure Act; the court seized of the earlier suit need not stay its own proceedings.
- A counterclaim must be pleaded with factual particularity; unspecified damages without material facts cannot be awarded.
Court orders
#- 1.The Appellant's appeal be and is hereby dismissed with costs to the Respondent
- On appeal from
- Chief Magistrate's Court, Nyahururu
- Nyahururu CM ELC E121 of 2019
- Jurisdiction invoked
- First appeal from subordinate court to the Environment and Land Court under statutory appellate jurisdiction (appeal against judgment and decree in Nyahururu CM ELC E121 of 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi v Kanyingi (Environment and Land Appeal 86 of 2023) [2024] KEELC 4966 (KLR)", Case Analysis (2024). ELCLA 86 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4966/eng@2024-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.