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ELCDismissedAppeal against the ruling of the Chief Magistrate's Court at Kisumu in Kisumu CM ELC No. 266 of 2018 Michael Dache vs Kisumu District Land & 3 others (appeal number not stated in the ruling)· [2024] KEELC 5000 (KLR)

Otiende & 5 others v Dache & 4 others (Environment and Land Appeal E032 of 2024) [2024] KEELC 5000 (KLR)

Environment and Land Court
1 July 2024
EAE. Asati
1,157 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu refused to set aside a land judgment pending appeal, ruling that such substantive relief must wait until the appeal itself is heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 11th June 2024 by the appellants in an appeal against a ruling of the Chief Magistrate's Court at Kisumu (Hon. V. Ogutu) delivered on 11th June 2024. The trial ruling had struck out the appellants' application dated 5th June 2024 seeking to set aside the trial court's judgment of 31st May 2023 and to be joined as defendants in Kisumu CM ELC No. 266 of 2018, a land dispute in which the 1st Respondent is the registered owner of parcel No. Kisumu/Kogony/5551. The appellants, who allege their properties are landlocked after the 1st Respondent closed an access road, sought an order setting aside the 31st May 2023 judgment and all consequential orders pending the appeal. The 1st Respondent opposed, asserting that the appellants are trespassers using an illegally created access road, that under sections 98 and 140 of the Land Act a land owner cannot be compelled to create an easement, and that no security had been offered under Order 42 Rule 6. The court held that setting aside the judgment was a substantive issue for determination in the appeal itself and could not be granted interlocutorily, as that would compromise the appeal. Prayers 1 to 6 were overtaken by events; the application was dismissed with costs to the 1st Respondent, applying section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the trial court's judgment of 31st May 2023 could be set aside pending the appeal

Holding

No - the propriety of the refusal to set aside the judgment is itself a substantive issue in the appeal and cannot be pre-empted by an interlocutory order

Reasoning

The appeal is against the ruling of 11th June 2024 in which the trial court declined to set aside its judgment and join the appellants. Whether the trial court was right not to set aside the judgment is one of the substantive issues to be determined in the appeal. Granting prayer 7 would therefore compromise the appeal without it being heard. The application lacked merit and was dismissed.

p. 3
02

Costs of the application

Holding

Costs awarded to the 1st Respondent, costs following the event

Reasoning

Under section 27 of the Civil Procedure Act costs follow the event unless the court exercises its discretion otherwise. No reason having been given to depart from that rule, costs of the dismissed application were awarded to the successful 1st Respondent.

p. 3

Legal principles established

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  • Costs follow the event under section 27 of the Civil Procedure Act unless reasons exist to depart
  • A court cannot grant an interlocutory order that determines a substantive issue pending in the appeal

Court orders

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  1. 1.The Notice of Motion dated 11th June 2024 is dismissed
  2. 2.Costs of the application are awarded to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3, 3A, 80 and 27
  • Civil Procedure RulesOrder 42 Rule 6; Order 51 Rules 1, 3 and 4
  • Land Actsections 98 and 140
  • Public Roads and Roads of Access ActCap 399
On appeal from
Chief Magistrate's Court at Kisumu (Hon. V. Ogutu, CM)
Kisumu CM ELC No. 266 of 2018 - application dated 5th June 2024
Jurisdiction invoked
Sections 1A, 3, 3A and 80 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules

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, "Otiende & 5 others v Dache & 4 others (Environment and Land Appeal E032 of 2024) [2024] KEELC 5000 (KLR)", Case Analysis (2024). Appeal against the ruling of the Chief Magistrate's Court at Kisumu in Kisumu CM ELC No. 266 of 2018 Michael Dache vs Kisumu District Land & 3 others (appeal number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5000/eng@2024-07-01

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