Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELCLA 86 of 2023· [2024] KEELC 4966 (KLR)

Muriithi v Kanyingi (Environment and Land Appeal 86 of 2023) [2024] KEELC 4966 (KLR)

Environment and Land Court
20 June 2024
3,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

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

#
This was a first appeal to the Environment and Land Court at Nyahururu against the judgment of Hon. P. Gichohi (CM) dated 18.05.2022 in Nyahururu CM ELC E121 of 2019, which allowed the respondent's claim that the appellant had sold her two plots excised from the suit property in 1995 and 2007 and ordered the appellant to transfer the property to her, issuing a permanent injunction and dismissing the appellant's counterclaim. The appellant raised nine grounds, including alleged prior dismissal of the suit, pendency of Nyahururu ELC No. E006 of 2021, want of Land Control Board consent, failure to prove the sale agreements, and erroneous dismissal of his counterclaim. Angima J summarized the appeal into three issues and, applying the established principles governing first appellate courts (Selle, Peters v Sunday Post, Watt v Thomas, Kapsiran Clan), re-evaluated the record. The court found the suit had never been dismissed; the later ELC suit did not bar the earlier trial suit, it being the appellant's duty to seek a stay under Section 6 of the Civil Procedure Act; there was no evidence the land was agricultural land in a controlled area; and the trial court's credibility findings, supported by the appellant's two decades of inaction, could not be disturbed. The defectively pleaded counterclaim was properly dismissed. The appeal was dismissed with costs to the respondent on 20 June 2024.

Key legal issues

#
01

Whether the trial court had jurisdiction to hear the suit after an alleged earlier dismissal, and whether a pending ELC suit barred the trial

Holding

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.

Reasoning

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.

p. 6
02

Whether the sale agreements were null and void for want of Land Control Board consent

Holding

No, the ground failed because the appellant did not prove the suit property was agricultural land in a land-controlled area.

Reasoning

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.

p. 6
03

Whether the trial court erred in finding the sale agreements existed and in believing the respondent

Holding

No; credibility findings of a trial court that saw and heard the witnesses cannot be lightly disturbed.

Reasoning

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.

p. 6
04

Whether dismissal of the appellant's counterclaim was erroneous

Holding

No; the counterclaim was defectively pleaded under Order 2 rules 1-4 of the Civil Procedure Rules, 2010.

Reasoning

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.

p. 7
05

Costs of the appeal

Holding

The respondent, as successful party, was awarded costs of the appeal.

Reasoning

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.

p. 7

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. 1.The Appellant's appeal be and is hereby dismissed with costs to the Respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 2 rules 1-4
  • Civil Procedure Act (Cap. 21)Section 6
  • Civil Procedure Act (Cap 21)Section 27 (proviso)
  • Land Control Actconsent requirements (referred to generally as 'Land Control Acts')

Cases cited (5)

  • Selle & Another -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters -vs- Sunday Post Ltd
    [1958] EA 424
  • Watt -vs- Thomas
    [1947] A.C. 424
  • Kapsiran Clan -vs- Kasagur Clan
    [2018] eKLR
  • Hussein Janmohamed & Sons -vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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.