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ELCDismissedNot stated in the judgment (memorandum of appeal dated 19/12/2023)· [2024] KEELC 7186 (KLR)

Nyakech v Ayoo & 2 others (Environment and Land Appeal E025 of 2023) [2024] KEELC 7186 (KLR)

Environment and Land Court
31 October 2024
2,168 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 Environment and Land Court dismissed a land appeal entirely because its grounds attacked the magistrate's reasoning instead of the final decision, highlighting why proper appeal drafting matters.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Siaya from a judgment of the learned trial magistrate delivered on 5/12/2023. The underlying dispute concerned land parcel East Gem/Kagilo/1461, registered in the 1st respondent's name, who sued the appellant for trespass, blocking and cultivation of the access road, and sought declarations, damages, mesne profits, removal of a restriction, injunction and removal of structures. The appellant defended on the basis that the suit property was a product of an illegal subdivision of a mother parcel, East Gem/Kagilo/186, originally registered in his father's name, and counterclaimed for nullification of titles, damages and injunction. The trial magistrate allowed the 1st respondent's claim, found the fraud in the counterclaim unproved, dismissed the counterclaim, and awarded costs to the 1st respondent. On appeal, the appellant raised 12 grounds. Before considering the merits, the court, Koross J, took as a preliminary issue the adequacy of the memorandum of appeal under Order 42 Rule 1(2) of the Civil Procedure Rules. The court found the grounds argumentative, narrative, repetitive, directed at the magistrate's reasoning and obiter dicta rather than the decree, and that ground 3 introduced a new issue. Applying Attorney General v Bala and Kenya Hotels Ltd v Oriental Commercial Bank Ltd, the court held no viable grounds existed, dismissed the appeal, upheld the trial judgment, and awarded costs to the 1st respondent only, the 2nd and 3rd respondents having not participated.

Key legal issues

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01

Adequacy of the memorandum of appeal under Order 42 Rule 1(2) of the Civil Procedure Rules

Holding

The grounds of appeal fell short of the legal requirement as they were not concise, were argumentative, narratively stated evidence, attacked the trial magistrate's obiter dictum and reasoning, were repetitive, and introduced a new issue

Reasoning

Order 42 Rule 1(2) requires grounds to be concise, under distinct heads, without argument or narrative, and directed to the decree appealed against. The court found the grounds derived from the magistrate's reasoning in the body of the judgment rather than the final disposal orders from which the decree derives, and that grounds on jurisprudence belonged in submissions, not the memorandum. Consequently no viable grounds existed.

p. 4
02

Whether a new issue may be introduced on appeal

Holding

Ground 3 introduced a new issue never pleaded or canvassed before the trial court; a party wishing to raise a new issue on appeal must first move the court under Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27, 28 and 29

Reasoning

The court held that a new issue not pleaded, canvassed or raised before the trial court cannot form a ground of appeal, citing Kenya Hotels Ltd v Oriental Commercial Bank Ltd, and that the proper avenue for additional evidence or new issues is the express procedure under Section 78(1)(d) and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules.

p. 4
03

Whether grounds attacking a trial magistrate's reasoning rather than the decree can sustain an appeal

Holding

They cannot; an appeal lies only against the final decree/orders, following the Court of Appeal's decision in Attorney General v Bala

Reasoning

Relying on Attorney General v Bala, the court held that grounds (4) to (9) attacked the trial magistrate's obiter dictum and reasoning contained in the body of the judgment, on which no findings were made, and hence could not sustain an appeal. An appeal lies against the decree, not against reasoning or mere findings.

p. 5
04

Interchangeable use of 'plaint' and 'memorandum of claim'

Holding

Grounds (1) and (2) were questions of mere semantics; the interchangeable use of synonyms by the trial magistrate cannot form the basis of an appeal

Reasoning

The court observed that a plaint and a memorandum of claim are each defined as a complaint (citing Black's Law Dictionary, 11th edition, and the Employment and Labour Relations Court Act), so the trial magistrate's interchangeable use of the terms was immaterial and could not ground a successful appeal.

p. 4

Legal principles established

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  • A memorandum of appeal must set out concisely and under distinct heads the grounds of objection to the decree or order appealed against, without argument or narrative, numbered consecutively
  • An appeal lies only against a decree or final orders, not against a court's reasoning or mere findings
  • Costs follow the event

Court orders

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  1. 1.The appeal was dismissed in its entirety
  2. 2.The judgment of the learned trial magistrate delivered on 5/12/2023 was upheld
  3. 3.Costs of the appeal awarded to the 1st respondent; no costs awarded to the 2nd and 3rd respondents as they did not participate in the proceedings

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 1(2)
  • Civil Procedure RulesOrder 42 Rules 27, 28 and 29
  • Civil Procedure RulesOrder 43 Rule 1 (referred to in Attorney General v Bala)
  • Civil Procedure ActSection 78(1)(d)
  • Land ActSection 26 (referred to in the memorandum of appeal)
  • Employment and Labour Relations Court ActNot specified (cited for the definition of a memorandum of claim)

Cases cited (5)

  • Attorney General v Bala
    Civil Appeal 223 of 2017 [2023] KECA 117 (KLR) (3 February 2023)
  • Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited)
    [2019] eKLR
  • Dina Management Limited v. County Government of Mombasa & 5 Others
    (Petition 8 (E010) of 2021) 2023 KESC 30 (KLR), 21 April 2023
  • Elijah Makeri Nyangwae v Stephen Mungai Njunguna & Another
    (2013) eKLR
  • Agabitus Okoth Owuor v. Redemta Akinyi & 2 Others
    ELCA No. 11 of 2021
On appeal from
Magistrates' Court (trial court)
Not stated in the judgment
Jurisdiction invoked
Statutory first appeal to the Environment and Land Court against the judgment of the learned trial magistrate, as contemplated under Section 78(1)(d) of the Civil Procedure Act and Order 42 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, "Nyakech v Ayoo & 2 others (Environment and Land Appeal E025 of 2023) [2024] KEELC 7186 (KLR)", Case Analysis (2024). Not stated in the judgment (memorandum of appeal dated 19/12/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7186/eng@2024-10-31

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