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ELCStruck OutNot stated (arising from Civil Suit No. E067/2022, Magistrate's Court at Kajiado)· [2025] KEELC 3691 (KLR)

Opwora & another v Sondai (Environment & Land Case E054 of 2024) [2025] KEELC 3691 (KLR)

Environment and Land Court (sitting at Kajiado)
24 April 2025
LKL. Komingoi
661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by L. Komingoi, J, delivered virtually at Kajiado on 24th April 2025, determines a Notice of Motion dated 16th December 2024 in which the Appellants, Caleb Wafula Opwora and Kayimba Naftali Akala, sought leave to appeal against the judgment of 3rd December 2024 in Civil Suit No. E067/2022 at the Magistrate's Court at Kajiado. The application, supported by their joint affidavit, was opposed by the Respondent, Ibrahim Lei Sondai, through a replying affidavit and submissions arguing that the Appellants had not properly invoked the Court's jurisdiction and had failed to demonstrate substantial loss, relying on Charles Wahome VS Angela Wairimu Gethi. The Appellants' counsel in submissions sought stay of execution under Order 42 Rule 6 (2), citing Anderson Omondi Owandho, Vishram Ravji Halai and Suleiman VS Amboseli Resort Ltd. The court observed that the motion was drawn generally under 'the rules of the Civil Procedure Act' without citing express provisions; that no leave to appeal was required, the motion having been filed only 13 days after judgment with a memorandum of appeal already on file; and that no copy of the judgment or decree was annexed. Holding that jurisdiction was not properly invoked, that parties are bound by their pleadings, and that the motion was poorly drawn and defective, the court struck out the Notice of Motion with costs to the Respondent, while granting the Appellants liberty to bring a proper application.

Key legal issues

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01

Whether the application was properly brought and whether it invoked the Court's jurisdiction

Holding

The motion was defective: it cited no specific provision, sought unnecessary leave (no leave being required to appeal), and failed to annex the judgment and/or decree, so the Court's jurisdiction was not properly invoked.

Reasoning

The motion was brought 'under the rules of the Civil Procedure Act and all enabling provisions' without citing express provisions. Leave to appeal was unnecessary since the motion was filed 13 days after judgment and a memorandum of appeal was already filed. The judgment and decree were not annexed. The court agreed with the respondent that jurisdiction was not properly invoked, found the motion poorly drawn and defective, and struck it out with costs, granting liberty to file a proper application.

p. 2

Legal principles established

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  • An application must invoke the express provisions of the law relied upon; a motion drawn generally 'under the rules of the Civil Procedure Act' without citing the specific provisions is defective.
  • Parties are bound by their pleadings and cannot seek orders only raised in submissions.

Court orders

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  1. 1.The Notice of Motion dated 16th December 2024 is struck out with costs to the Respondent
  2. 2.The Appellants have liberty to bring a proper application for consideration by the Court

Authorities

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Legislation

  • Civil Procedure Actrules made thereunder (unspecified)
  • Civil Procedure RulesOrder 42 Rule 6 (2)

Cases cited (4)

  • Anderson Omondi Owandho (suing as the legal representative of the estate of Thomas Rajwal (deceased)) VS Augustino Onieki
    [2007] eKLR
  • Vishram Ravji Halai VS Thornton & Turpin
    [1990] KLR 365
  • Suleiman VS Amboseli Resort Ltd
    [2004] 2 KLR 589
  • Charles Wahome VS Angela Wairimu Gethi
    [2008] eKLR
On appeal from
Magistrate's Court at Kajiado
Civil Suit No. E067/2022
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 42)

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, "Opwora & another v Sondai (Environment & Land Case E054 of 2024) [2025] KEELC 3691 (KLR)", Case Analysis (2025). Not stated (arising from Civil Suit No. E067/2022, Magistrate's Court at Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3691/eng@2025-04-24

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