Wanjala v Director, Basakwa Multipurpose & 5 others (Environment and Land Appeal E019 of 2024) [2025] KEELC 7160 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed an appeal, confirming you cannot raise new arguments on appeal that you never raised in the trial court.
What this practically means
#Executive summary
#Key legal issues
#Whether new issues may be raised on appeal that were not canvassed at trial
No - issues not pleaded, canvassed and determined at the trial court cannot be raised on appeal without leave
The court traced the entire record and found that the grounds on limitation, directorship, and locus standi were never raised in the application dated 16/5/2024 leading to the impugned ruling. Citing Thomas Openda v Peter Martin Ahn via Kenya Hotels Ltd, the court held a new point cannot be taken on appeal unless with leave. The appellant's limitation and capacity arguments therefore failed.
Whether the appellant was estopped from denying directorship and party status
Yes - he became a party when he appeared, bound himself to honour the decree, and paid Kshs. 33,333/= without objection
The record showed the appellant featured prominently before instructing counsel, joined the suit by application dated 5/7/2021, admitted being vice chairman of the 1st respondent in 1989, conceded to payments and actually paid his share. Having elected the refund option and later the land surrender, he could not renege at the appellate stage.
Whether the mediation agreement should have been set aside for error apparent on the face of the record
No - the application was not brought under Rule 39(3) of the Court Annexed Mediation Rules and no misconduct, fraud or mistake was proved
The mediation agreement was adopted, signed and executed before the trial court in the presence of parties, and the appellant raised no objection at the earliest opportunity, even attending the locus in quo visit with the County Land Surveyor. No evidence of fraud, misconduct or mistake at execution was tendered.
Whether the decree was stale/limitation-barred and the trial court lacked jurisdiction
The issue failed as it was not raised at trial; also the 2nd respondent's capacity as nominee was proper under Section 39 of the Co-operative Societies Act
The court found the limitation issue was not raised, canvassed or determined at the trial court; the appellant raised no objection to adoption of the mediation agreement or its implementation. Disputes about a nominee's capacity and directorship lie before the Co-operative Tribunal under Section 39 of the Co-operative Societies Act.
Legal principles established
#- Grounds of appeal must arise from issues sufficiently pleaded, canvassed and raised at trial; a new point not raised at trial cannot be taken on appeal without leave
- A party who has bound himself by conduct and part-performance is estopped from reneging at the appellate stage
- An error apparent on the face of the record must be self-evident and require no elaborate argument
- A party cannot approbate and reprobate - blow hot and cold - on the same transaction
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- Trial court (lower court, Kitale)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over ruling of the lower court (Co-operative dispute; appeal against dismissal of application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjala v Director, Basakwa Multipurpose & 5 others (Environment and Land Appeal E019 of 2024) [2025] KEELC 7160 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of appeal dated 31/7/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7160/eng@2025-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.