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ELCDismissedNgong PM ELC Case No. 16 of 2018 (Appeal)· [2024] KEELC 7032 (KLR)

Mogeni v Koskei & another (Environment and Land Appeal E033 of 2023) [2024] KEELC 7032 (KLR)

Environment and Land Court
24 October 2024
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court refused to pause execution of a land judgment because the appellant filed the appeal without providing the actual court record.

What this practically means

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Executive summary

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The Appellant/Applicant moved the Environment and Land Court at Kajiado by Notice of Motion dated 28th February 2023 under Order 42 Rule 6(1)(2) and Order 51(1) of the Civil Procedure Rules seeking temporary stay of execution of the judgment and decree in Ngong PM ELC Case No. ELC 16 of 2018 pending hearing and determination of his appeal against the ruling of 30th November 2023, which had dismissed his application to reopen his case after the trial suit was dismissed on 20th July 2023. He argued he risked execution and irreparable harm to his right to be heard, relying on Giella v Cassman Brown, Nguruman and Mrao. The 1st Respondent opposed, contending he was declared lawful owner of plot No. 1020 Residential Olekasasi Trading Centre, that the appeal lay against the ruling only and not the judgment, that no substantial loss would ensue, and that the Applicant was a perennial litigant abusing process; he sought security of Kshs. 300,000 if orders issued. Komingoi J framed three issues: propriety of the application, merit, and costs. The court took cognisance that the Applicant had filed neither the Record of Appeal nor the impugned judgment or ruling, contrary to Order 42 Rules 2 and 13(4), and gave no explanation for their absence. Applying Musamarini Limited v A.D.M. Limited, the court held it could not grant orders on material not placed before it - a technicality going to the root of the suit - and dismissed the application with costs to the 1st Respondent.

Key legal issues

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01

Whether the application was properly before the court absent the record of appeal and the impugned judgment/ruling

Holding

The application was not properly before the court; the omission was fatal

Reasoning

The Applicant filed a memorandum of appeal against the ruling of 30th November 2023 but neither filed the Record of Appeal nor the judgment and ruling appealed from, contrary to Order 42 Rules 2 and 13(4) of the Civil Procedure Rules. Without those documents the court had nothing to assess to determine whether the lower court's reasoning was sound. Following Musamarini Limited v A.D.M. Limited, the court held it would be acting in the dark to grant orders on issues not placed before it, a technicality going to the root of the suit.

p. 4
02

Whether the Application met the threshold for stay of execution under Order 42 Rule 6

Holding

The court declined to reach the merits because of the applicant's failure to avail the record

Reasoning

Having found the application not properly before the court for want of the Record of Appeal and the impugned judgment and ruling, the court did not consider whether substantial loss, security or timeliness under Order 42 Rule 6 had been demonstrated. The 1st Respondent had argued no substantial loss would arise since the appeal lay against the ruling, not the judgment declaring him owner; the Applicant relied on Giella v Cassman Brown and related authorities, but the court disposed of the application on the jurisdictional/procedural ground.

p. 4

Legal principles established

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  • A court cannot properly determine an application or appeal where the applicant fails to avail the judgment, ruling or record being appealed from

Court orders

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  1. 1.Application dismissed
  2. 2.Costs of the application awarded to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)(2)
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 42 Rule 13(4)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 53
  • Constitution of KenyaArticle 50(1)
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (7)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Ltd vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) eKLR
  • Sang (suing as the Legal Representative of the Estate of Kipsang Misoi Deceased) & 2 others vs Bengat
    [2024] KEELC 3835 (KLR)
  • Bernard Njoroge Kibaki t/a Njowa Njemu Enterprises vs Equity Bank Ltd & another
    [2020] eKLR
  • Nyambura & another vs Mwangi
    [2023] KEELC 22456 (KLR)
  • Musamarini Limited & 6 others v A.D.M. Limited & 5 others
    [2011] eKLR
On appeal from
Principal Magistrate's Court, Ngong
PM ELC Case No. 16 of 2023
Jurisdiction invoked
Order 42 Rule 6(1)(2) and Order 51(1) of the Civil Procedure Rules; Sections 1A, 3A of the Civil Procedure Act; Article 53 of the Constitution

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, "Mogeni v Koskei & another (Environment and Land Appeal E033 of 2023) [2024] KEELC 7032 (KLR)", Case Analysis (2024). Ngong PM ELC Case No. 16 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7032/eng@2024-10-24

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