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ELCStruck OutHigh Court Civil Appeal (Migori) arising from Migori CMC ELC No. 50 of 2019· [2024] KEELC 6287 (KLR)

Mudavadi v Oriaro (Environment and Land Appeal E006 of 2021) [2024] KEELC 6287 (KLR)

High Court of Kenya
24 September 2024
GOG.M.A Ong'ondo
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The High Court in Migori struck out a land appeal because the appellant never properly introduced a related court judgment she relied on to argue the case had already been decided.

What this practically means

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Executive summary

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This is a first appeal from Migori CMC ELC No. 50 of 2019, in which the trial magistrate granted the respondent, Benson Olianga Oriaro, a conditional eviction order, a permanent injunction restraining the appellant, Claris K Mudavadi, from trespassing on L.R. Suna West/Wasweta II/6317, and costs. The appellant, who claimed she had purchased 3 acres of the mother parcel in 1992-1993 from Raphael Oloo Ochola, mounted a ten-ground appeal seeking dismissal of the respondent's claim. In written submissions she argued that the lower court suit was sub judice ab initio and now res judicata given the judgment in Migori ELC O.S No. 736 of 2017, which she said favoured her. The respondent maintained the appellant was a trespasser and that the res judicata arguments were new issues not raised in the pleadings. Ong'ondo J, restating the caution with which a first appellate court reviews trial evidence (citing Peters v Sunday Post), held that the ELC proceedings and judgment were never introduced as additional evidence on appeal, and no leave was sought under Section 78 of the Civil Procedure Act as required by Mohamed Abdi Mahamud. The appellant had also failed to disclose the parallel ELC proceedings to the trial court. Concluding that the appeal was inept, the court struck it out with costs to the respondent. The trial court's judgment was left undisturbed.

Key legal issues

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01

Whether the lower court suit was sub judice and the appeal res judicata in light of the ELC suit (Migori ELC O.S No. 736 of 2017)

Holding

The argument failed because the ELC proceedings and judgment were never introduced as evidence in the appeal, and no leave was sought to adduce them

Reasoning

The court noted the appellant never alerted the court below to the parallel ELC proceedings. On appeal, the ELC record and judgment were relied upon in submissions only. Under Section 78 of the Civil Procedure Act and Mohamed Abdi Mahamud, additional evidence requires leave. Without the material properly on record, the res judicata and sub judice contentions could not be evaluated and the appeal was inept.

p. 5
02

Whether the trial magistrate's judgment should be disturbed

Holding

The appeal was struck out rather than determined on its merits; the court did not disturb the trial judgment's findings

Reasoning

The court rehearsed the trial evidence, including the trial magistrate's adverse findings on the appellant's occupation and the defective sale, but declined to engage further because the appeal collapsed on the evidentiary threshold regarding the ELC proceedings. The impugned judgment was held compliant with Order 21 Rule 4 of the Civil Procedure Rules.

p. 5

Legal principles established

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  • On a first appeal the court may review the evidence of the trial court, but this jurisdiction is exercised with caution
  • Proceedings and judgment in a related suit cannot ground a res judicata argument on appeal unless introduced as new evidence with leave

Court orders

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  1. 1.The memorandum of appeal dated 1st February 2021 is struck out
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure Rules, 2010Order 21 Rule 4

Cases cited (5)

  • Law Society of Kenya vs Attorney General & another
    [2019] eKLR
  • Galaxy Paints Co. Ltd. -vs- Falcon Guards Ltd
    Court of Appeal Civil Appeal No. 219 of 1998
  • Wambugu-vs-Wainaina
    (1983) KLR 173
  • Peters-vs-Sunday Post
    (1958) EA 424
  • Mohamed Abdi Mahamud vs. Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
On appeal from
Chief Magistrate's Court, Migori (CMC ELC No. 50 of 2019, Benson Olianga Oriaro v Claris K. Mudavadi)
Migori CMC ELC No. 50 of 2019
Jurisdiction invoked
First appeal from the trial court pursuant to the court's appellate jurisdiction over magistrates' courts (Civil Procedure Act, Chapter 21 Laws of Kenya)

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, "Mudavadi v Oriaro (Environment and Land Appeal E006 of 2021) [2024] KEELC 6287 (KLR)", Case Analysis (2024). High Court Civil Appeal (Migori) arising from Migori CMC ELC No. 50 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6287/eng@2024-09-24

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