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Court of AppealStruck OutCivil Application No. 147 of 2020· [2021] KECA 785 (KLR)

Joshua Jaoko Otieno v Erastus Opiyo Otieno [2021] KECA 785 (KLR)

Court of Appeal of Kenya
19 March 2021
RNR. N. Nambuye
1,578 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that appeals in adverse possession cases need the trial court's permission first, striking out an appeal attempt that skipped this step.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Kisumu on a Notice of Motion dated 9th December 2020 under Rule 4 of the Court of Appeal Rules, in which Joshua Jaoko Otieno sought leave to file a notice of appeal and record of appeal out of time, or in the alternative to have his annexed notice of appeal deemed filed within time, against a judgment of G. M. A. Ongondo, J of the Environment and Land Court at Migori delivered on 8th July 2020 in Migori ELC Case No. 525 of 2017. The applicant, who had claimed adverse possession by originating summons under Order 37 Rule 7 of the Civil Procedure Rules, explained the delay by the Covid-19 court shutdown and failure of the registry to communicate that judgment had been delivered. The respondent opposed, contending the application was premature and incompetent because an appeal from such a claim lies only with leave of the trial court, which had already declined leave. The court treated the jurisdictional objection as dispositive, applying the 'down tools' principle from Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd. Construing Order 37 Rules 1, 2 and 7 with Order 43 Rules 1-4 of the CPR and section 75(1)(h) of the Civil Procedure Act, it held that an adverse possession claim under section 38 of the Limitation of Actions Act does not attract an appeal as of right; leave must first be sought from the ELC. The application was struck out as premature, with the applicant rerouted to the ELC.

Key legal issues

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01

Whether an appeal against a decision in an adverse possession claim brought by originating summons under Order 37 Rule 7 CPR lies as of right

Holding

No. Such an appeal lies only with leave of the trial court; the applicant was therefore obliged to seek leave from the ELC before invoking the Court of Appeal's Rule 4 jurisdiction

Reasoning

The court construed Order 37 Rules 1, 2 and 7 of the CPR and found no limitation on appeal there, but read those provisions with Order 43 Rules 1-4 of the CPR. Rule 2 provides that an appeal lies with leave from any other order; Rule 3 directs that the application for leave under section 75 of the Civil Procedure Act be made in the first instance to the court making the order. An adverse possession claim under section 38 of the Limitation of Actions Act is not among the orders from which appeal lies as of right under section 75(1)(h).

p. 2
02

Priority of jurisdictional questions

Holding

Jurisdictional issues, once raised, must be dealt with first; without jurisdiction the court has no business proceeding and must down tools

Reasoning

The court adopted the classic statement in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd that jurisdiction is the authority a court has to decide matters litigated before it, and that where a court lacks that authority it must down tools. Because the respondent's unrebuted objection went to jurisdiction, the court resolved it before considering the extension-of-time principles.

p. 2

Legal principles established

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  • Where an appeal lies only with leave (as with an adverse possession claim under Order 37 Rule 7 CPR read with Order 43 rules 1-3 CPR and section 75(1)(h) of the Civil Procedure Act), leave must first be sought from the court making the order before an extension of time application under Rule 4 of the Court of Appeal Rules can be entertained; without jurisdiction, the Court of Appeal must down tools

Court orders

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  1. 1.The Notice of Motion dated 9th December 2020 is struck out for being premature
  2. 2.The applicant is rerouted back to the Environment and Land Court to seek leave to appeal and thereafter proceed according to law
On appeal from
Environment and Land Court
Migori ELC Case No. 525 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, with reference to Order 43 Rules 1-4 of the Civil Procedure Rules and section 75(1)(h) of the Civil Procedure Act

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, "Joshua Jaoko Otieno v Erastus Opiyo Otieno [2021] KECA 785 (KLR)", Case Analysis (2021). Civil Application No. 147 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/785/eng@2021-03-19

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