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ELCDismissedELC Appeal (Kitale ELC Appeal No. E006 of 2024 arising from Kitale CMCC No. 6 of 2024)· [2024] KEELC 5775 (KLR)

Japata Agricultural Development Corporation v Mungusho & 2 others (Environment and Land Appeal E003 of 2024) [2024] KEELC 5775 (KLR)

Environment and Land Court
19 July 2024
FNF. Nyagaka
3,499 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear land-dispute appeals even when the original case was labelled an ordinary civil suit.

What this practically means

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Executive summary

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The Appellant appealed against ex parte orders issued on 12/01/2024 by Hon. M. M. Nafula, Principal Magistrate, in Kitale CMCC No. 6 of 2024, a suit in which the Plaintiffs (now Respondents), claiming ownership of parcel L.R. 6106/4, sought a permanent injunction restraining the Appellant from stopping the burial of one Amos Barasa Masika on that land. The Respondents filed a Notice of Preliminary Objection dated 06/05/2024 contending that the ELC lacked jurisdiction to hear an appeal from an ordinary civil suit. The Court first restated the Mukisa Biscuit definition of a preliminary objection as a pure point of law, and disregarded the Appellant's Replying Affidavit as evidentiary. It also rejected the Respondents' oral suggestion that the suit had been withdrawn: the court file disclosed no Notice of Withdrawal, and the Court held that even a valid withdrawal under Order 24 Rule 1 requires notice to and hearing of all parties, particularly on costs under Section 27 of the Civil Procedure Act. The Court then noted irregularities in the change of advocates on record (Order 9 Rules 5 and 6). On jurisdiction, the Court held that jurisdiction is a creature of statute and that it must look beyond the label of the pleadings to the substance: the dispute was over ownership and use of land, a matter within Article 162(2)(b) and Section 13 of the Environment and Land Court Act. The magistrate's court therefore acted as a court subordinate to the ELC, and the appeal properly lay to this Court. The Preliminary Objection was dismissed with costs to the Appellant, and the appeal was set down for hearing on 22/07/2024.

Key legal issues

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01

Nature of a preliminary objection

Holding

It must be a pure point of law deducible from pleadings; the court disregarded the Appellant's Replying Affidavit

Reasoning

Applying Mukisa Biscuit, the court held that a preliminary objection flows directly from pleadings compared with the law. Anything requiring ascertainment of facts or exercise of discretion is evidentiary. The Replying Affidavit sworn by Edward Ojode was therefore disregarded in analysing the objection.

p. 2
02

Whether the suit was withdrawn so the appeal was moot

Holding

No valid withdrawal was on record; the suit subsisted

Reasoning

The lower court file contained no Notice of Withdrawal. Even if one existed, a withdrawal cannot take effect until all parties, having been served and filed pleadings, are heard on the consequences, especially costs, per Order 24 Rule 1 and Section 27 of the Civil Procedure Act.

p. 3
03

Whether the ELC has jurisdiction over the appeal

Holding

Yes; the dispute, though styled a civil suit, concerned ownership and use of land, a matter within Article 162(2)(b) and Section 13 ELC Act

Reasoning

The plaintiffs sought an injunction over burial on parcel L.R. 6106/4 which they claimed to own. The real question was who owned the land. The magistrate's court sat as a court subordinate to the ELC in a land matter, so any appeal lies to this Court, not the High Court.

p. 6

Legal principles established

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  • Jurisdiction is a creature of statute and cannot be conferred by parties or assumed by a court
  • The court must look at the substance of the subject matter, not the label in the heading of pleadings, to determine jurisdiction
  • A suit cannot be unilaterally withdrawn without notice to, and hearing of, all parties who have entered appearance
  • A preliminary objection must rest on a pure point of law from the pleadings, not evidence

Court orders

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  1. 1.The Preliminary Objection dated 06/05/2024 is dismissed with costs to the Appellant
  2. 2.The hearing of the appeal to proceed on 22/07/2024

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSections 4, 5, 11, 27
  • Civil Procedure RulesOrder 9 Rules 5 and 6; Order 24 Rule 1

Cases cited (5)

  • Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR
  • Susan Wairimu Ndiangui V Pauline W. Thuo & Another
    [2005] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • In the Matter of Advisory Opinions of the Court under Article 163 of the Constitution
    Constitutional Application No. 2 of 2011
On appeal from
Chief Magistrate's Court at Kitale
Civil Suit No. 6 of 2024
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 13 of the Environment and Land Court Act; Section 79G Civil Procedure Act (appellate jurisdiction implied from the appeal lodged)

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, "Japata Agricultural Development Corporation v Mungusho & 2 others (Environment and Land Appeal E003 of 2024) [2024] KEELC 5775 (KLR)", Case Analysis (2024). ELC Appeal (Kitale ELC Appeal No. E006 of 2024 arising from Kitale CMCC No. 6 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5775/eng@2024-07-19

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