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ELCDismissedELC Appeal No 27 of 2023 (Consolidated with ELC Appeal No 28 of 2023)· [2024] KEELC 5657 (KLR)

Dzuya v Mwakombo & another (Environment and Land Appeal 27 of 2023) [2024] KEELC 5657 (KLR)

Environment and Land Court
31 July 2024
MNMwangi Njoroge
7,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court dismissed both appeals over a land trespass case, allowing the magistrate to order a survey before delivering judgment.

What this practically means

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Executive summary

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This is a consolidated judgment of the Environment and Land Court at Malindi (Mwangi Njoroge, J) determining two appeals against an interlocutory ruling of Hon. Nelly Chepchirchir, P.M., Mariakani, dated 6th June 2023 in Environment and Land Case No. 33 of 2019. The suit below was a claim of trespass over Parcel No 1043/III/150, with the appellant seeking eviction, vacant possession, a permanent injunction and costs. After both sides closed their cases and filed submissions, the trial court, instead of delivering the judgment it had reserved, issued a ruling ordering the County Surveyor, Kilifi, to survey the disputed plots and clarify possible encroachment on a road reserve, with survey costs shared equally. Both parties appealed. The appellant argued res judicata on the jurisdictional issue, breach of the order of 18th October 2022 declining a site visit, and condemnation to pay costs unheard. The respondent cross-appealed, alleging bias, want of jurisdiction and lack of audience, seeking dismissal of the suit or remission to another magistrate. The court held the jurisdictional issue was res judicata following the ruling of 27th July 2021 never appealed; that dismissal of the entire suit could not issue on an appeal from an interlocutory order in an unfinalized suit; that the objective test of bias was not satisfied, the county surveyor being an impartial public officer; and that the trial court exercised a broad discretion to procure expert evidence, the challenge being premature. Both appeals were dismissed with no order as to costs, the impugned ruling left in force, and the trial record returned for conclusion of the suit.

Key legal issues

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01

Res judicata regarding the trial court's jurisdiction

Holding

The jurisdictional challenge was res judicata, having been dismissed in the ruling of 27/7/2021 which was never appealed or reviewed

Reasoning

The respondent had raised the jurisdictional issue in a preliminary objection dated 8/4/2021 which was dismissed on 27/7/2021. No appeal or review was pursued against that ruling within the prescribed period, and no extension of time was sought. Entertaining the issue in the present appeal would amount to admitting an appeal through the backdoor.

p. 8
02

Whether the trial court's order for a survey amounted to bias or descending into the arena

Holding

No bias was established; the trial court was entitled to order a county surveyor's report notwithstanding its earlier rejection of a site visit

Reasoning

The court distinguished a site visit from a survey. A county surveyor is an impartial public officer and custodian of survey records whose report may not materially advantage either party. The trial court exercised its discretion to midwife justice, and the challenge against its decision was premature, to be raised in an appeal against the final judgment.

p. 12
03

Whether the ruling could be set aside and the suit dismissed

Holding

An order dismissing or striking out the suit could not issue on appeal against an interlocutory order where the primary suit is unfinalized

Reasoning

The dismissal sought could only follow if the jurisdictional issue were live before the court or a final judgment under challenge. Neither applied, so the first prayer in the cross-appeal was rejected.

p. 8
04

Costs of the court-ordered survey

Holding

A party aggrieved by the order to share survey costs must await the final adjudication of costs at the end of the litigation

Reasoning

Litigation is an expedition to find the truth and justice does not come cheap; costs provisions exist for apportionment at the conclusion of the suit.

p. 12

Legal principles established

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  • An issue already heard and finally determined by a competent court, not vacated through appeal or review, is res judicata and cannot be entertained afresh
  • The test for bias is objective, being the impression given to a reasonable person, not the mindset of the judge
  • A trial court has broad discretion to issue directions on the conduct of litigation, including ordering expert evidence, and an appellate court should not interfere prematurely before final judgment

Court orders

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  1. 1.Both the appeal (Malindi ELC Appeal No 27 of 2023) and the cross-appeal (Malindi ELC Appeal No 28 of 2023) are dismissed with no order as to costs
  2. 2.The ruling and order of the trial court delivered on 6/6/23 shall remain in force
  3. 3.The Deputy Registrar of the court to return the original trial court record to the trial court expeditiously to enable the parties comply with the orders of 6/6/23 and for the trial court to conclude the suit by writing a judgment

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Article 27(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50(1)
  • Law of Contract Actnot specified
  • Civil Procedure Rulesprovisions on misjoinder and non-joinder of parties

Cases cited (12)

  • Gladys Nduku Nthuki v Letshego Kenya Limited & Ano
    (2022) eKLR
  • Said Juma Chitembwe v Edward Muriu & 4 others
    (2011) eKLR
  • Samuel Njagi Mwangi v James Kamau Wainaina
    Civil Appeal No. 6 of 2017
  • Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Savings Bank
    Civil Appeal No. 5 & 48 of 2002 (2004)
  • Fredrick Kigwa Odullah v Titus Wanyonyi Wasianju
    (2019) eKLR
  • Esther Rumba v Paul Mulatya Moki
    Civil Appeal No. 7 of 2020 (unreported)
  • Philmark Systems Co. Ltd. v Andermore Enterprises
    (2018) eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another
    (2020) eKLR (with Kinyanjui Njuguna & Company Advocates & another, Interested Parties)
  • Kibisu v Republic (Petition 3 of 2014)
    [2018] KESC 34 (KLR) (28 February 2018) (Ruling)
  • Tumaini v Republic
    [1972] EA LR 441
  • Republic v Mwalulu & 8 Others
    [2005] 1 KLR
On appeal from
Chief Magistrate's Court, Mariakani
Environment and Land Case No. 33 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the subordinate court's ruling in Environment and Land Case No. 33 of 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dzuya v Mwakombo & another (Environment and Land Appeal 27 of 2023) [2024] KEELC 5657 (KLR)", Case Analysis (2024). ELC Appeal No 27 of 2023 (Consolidated with ELC Appeal No 28 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5657/eng@2024-07-31

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