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Court of AppealStruck OutCivil Appeal No. 150 of 1996

Samson Githua Kiboi v Hannah Wamaitha Njihia & another [1996] KECA 170 (KLR)

Court of Appeal
11 December 1996
901 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a land appeal because the appellant skipped a mandatory leave step required for small-value cases.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nairobi against the decision of the Ag. Resident Magistrate at Thika in Thika Senior Resident Magistrate's Court Civil Suit No. 41 of 1991, which had been upheld on first appeal by the High Court (Justice Sheikh-Amin, ruling dated 15th May 1996). The respondents had sued in trespass, and the trial magistrate ordered the appellant to quit and deliver vacant possession of part of parcel Loc.1/Kirwara/523. The magistrate declined to consider the appellant's alternative defence and counterclaim for a declaration of adverse possession under Section 38 of the Limitation of Actions Act, holding he lacked jurisdiction. Before the Court of Appeal, counsel argued that a subordinate court of the first class had jurisdiction to entertain an adverse possession defence when read with Section 159 of the Registered Land Act. However, the court raised, of its own motion, the question of its own jurisdiction under Section 79E of the Civil Procedure Act, which bars a second appeal where the value of the subject-matter does not exceed ten thousand shillings unless special leave is first obtained. The appellant pleaded a purchase price of Kshs.400/= per acre and claimed one acre. Counsel urged that current land values should apply, but the court held that, absent an amended pleading and evidence, the pleaded figure governs. Finding no evidence that leave had been obtained, and holding the section mandatory, the court struck out the appeal with costs to the respondents. The merits, including the adverse possession question, were not reached.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to entertain the second appeal where the pleaded value of the subject-matter does not exceed ten thousand shillings and no special leave under Section 79E of the Civil Procedure Act was first obtained
  2. 2.Whether the value of the subject-matter for purposes of Section 79E should be taken as the price pleaded (Kshs.400/= per acre) or the market value of the land as at the date of the suit

Key legal issues

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01

Whether the second appeal was competent without special leave under Section 79E of the Civil Procedure Act

Holding

The appeal was incompetent because the pleaded value of the subject-matter (Kshs.400/= per acre for one acre) did not exceed ten thousand shillings and no special leave was obtained before lodging the appeal.

Reasoning

Section 79E bars a second appeal in suits whose subject-matter does not exceed ten thousand shillings unless special leave is first obtained from the court before which the appeal is to be heard. The appellant pleaded a purchase price of Kshs.400/= per acre and claimed one acre. Counsel argued that current land values should apply, but there was no evidence of value at the date of the suit and the defence was not amended. The court held the pleaded figure governs and the section is mandatory.

p. 2
02

Whether the value of the subject-matter should be assessed at the date of sale or the date of suit

Holding

The pleaded figure must be taken as the value; the court cannot substitute an unpleaded, unevidenced market value at the date of the suit.

Reasoning

Counsel for the appellant contended that land prices had risen since the 1964 sale, so the value at the date of suit should govern. The court found no evidence of the value at the date of the suit, and noted the statement of defence had not been appropriately amended. Taking an unpleaded value would risk removing the matter from the pecuniary jurisdiction of the trial court, so the pleaded price controlled.

p. 2

Legal principles established

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  • No second appeal lies under Section 79E of the Civil Procedure Act, without special leave first obtained, in any suit where the amount or value of the subject-matter does not exceed ten thousand shillings, and the requirement is mandatory.
  • For purposes of pecuniary jurisdiction under Section 79E, the court is obliged to take the value of the subject-matter as pleaded, absent an appropriately amended pleading and evidence of a different value.

Court orders

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  1. 1.The appeal is struck out with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 97 of 1994
Jurisdiction invoked
Section 79E of The Civil Procedure Act, Cap 21 Laws of Kenya (leave requirement for second appeals where the value of the subject-matter does not exceed ten thousand shillings)

Relief refused

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Leave to entertain the second appeal without prior special leave under Section 79E

The section is mandatory and the appellant obtained no leave before lodging the appeal; the appeal is incompetent

p. 2

Consideration of the appellant's alternative defence/counterclaim for a declaration of adverse possession under Section 38 of the Limitation of Actions Act

The appeal itself was struck out for want of jurisdiction, so the merits, including the adverse possession defence, were not reached

p. 1

Costs

The appeal is struck out with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

No second appeal from a decree passed in appeal by the High Court shall lie in any suit when the amount or value of the subject-matter does not exceed ten thousand shillings unless special leave has been first obtained from the court before whom the appeal is to be heard.
p. 2Statutory text of Section 79E, Civil Procedure Act - leave requirement for second appeals
this court is obliged to take the figure pleaded as the value of the land.
p. 2Pleaded value governs pecuniary jurisdiction under Section 79E
Consequently, the section being worded in mandatory terms, this appeal is incompetent and is struck out with costs to the respondents.
p. 2Final orders - appeal struck out for want of statutory leave

Issues in the judgment

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minor

The judgment's heading describes the appeal as from a High Court ruling dated 15th May 1996 in H.C.C.C. No. 97 of 1994, but the body describes it as a second appeal against the judgment of the Ag. Resident Magistrate at Thika in Thika Senior Resident Magistrate's Court Civil Suit No. 41 of 1991, upheld on first appeal by the superior court; the two descriptions are not reconciled in the judgment.

minor

The suit land is referred to as Loc.1/Kirwara/523 in the opening paragraph but as Loc.1/Kirwara/525 in the description of the respondents' claim.

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, "Samson Githua Kiboi v Hannah Wamaitha Njihia & another [1996] KECA 170 (KLR)", Case Analysis (1996). Civil Appeal No. 150 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/170/eng@1996-12-11

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