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ELCDismissedKisumu ELC Appeal (Memorandum of Appeal dated 14th August, 2023)

Midumbi (Suing as Personal Representative of the Estate of the Late Polycap Otieno Arodi - Deceased) v Sule & 6 others (Environment and Land Appeal E009 of 2023) [2025] KEELC 4080 (KLR)

Environment and Land Court
29 May 2025
1,931 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land appeal, confirming that a withdrawn suit is finished and improperly joined parties are strangers to proceedings.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisumu against a ruling delivered on 27th July 2023 by Hon. J.N. Wambilianga (Senior Principal Magistrate) in Kisumu CMC EL Case No. 414 of 2018. The underlying suit, in which the Appellant sued as legal representative of Polycarp Otieno Arodi (deceased), sought to restrain the burial of Thomas Nyamori Sule on land parcel Kisumu/Kasule/545. The suit was compromised by a consent order providing for its withdrawal without costs and equal 50% sub-division of the land between the families of Polycarp Otieno Arodi and Richard Sule Odonje. The Appellant later applied for orders nullifying sub-divisions and revoking resulting titles, joining six Interested Parties without leave. The trial court dismissed the application, finding the consent complied with, the Interested Parties were strangers to it, and joinder was procedurally defective. On appeal, E. Asati J applied the settled duty of a first appellate court to re-evaluate the evidence. The court held the appeal lay against a ruling, not a judgement, and was to that extent misconceived; that the consent order was complied with, each family receiving its half; that the Appellant failed to discharge the burden of showing the trial court misanalyzed the evidence; and that the Interested Parties were improperly before court since the suit had been withdrawn and no leave for joinder had been obtained under Order 1 of the Civil Procedure Rules. The appeal was dismissed with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the appeal is against the judgement in the suit or against the ruling
  2. 2.Whether the trial court failed to properly analyze the evidence and exhibits presented before court and thereby came to a wrong determination not backed by evidence
  3. 3.Whether the trial court failed to take into account evidence of the Appellant regarding the contents of the consent order
  4. 4.Whether the Interested Parties were properly before court

Key legal issues

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01

Nature of the decision appealed against

Holding

The appeal was against the ruling of 27th July, 2023 on the application dated 15th June, 2022, not against a judgement in the suit; to that extent the appeal was misconceived

Reasoning

The record showed the suit had been compromised by the consent order of 24th September 2018 and no judgement was delivered by Hon. Wambilianga on 27th July 2023. The only decision on that date was the ruling on the application dated 15th June 2022. Describing the appeal as being against a judgement was an error rendering the appeal, to that extent, misconceived.

p. 4
02

Whether the consent order was complied with

Holding

The consent order was complied with: parcel No. 9395, approximately half of the suit land, went to the Defendant/1st Respondent, and all other parcels went to or through members of the family of Polycarp Otieno Arodi

Reasoning

On re-examination of the documents before the trial court, the court found that parcel No. 9395, measuring approximately half the suit land, was given to the Defendant with no complaint from him. All other parcels were received by members of Polycarp Otieno Arodi's family or through them, satisfying the consent order's requirement that each family receive 50%. The Appellant's grievance was internal to his own family.

p. 5
03

Whether the Interested Parties were properly before court

Holding

The Interested Parties were improperly before court as the suit had been withdrawn and no leave for joinder was sought under Order 1 of the Civil Procedure Rules

Reasoning

The suit had been withdrawn by consent and a withdrawn suit is an ended suit; the law only allows filing of a fresh suit. Even if the suit were active, joinder required compliance with the Civil Procedure Rules on joinder of parties, and no leave was sought. The Interested Parties, listed as Respondents in the appeal, were therefore strangers to the proceedings.

p. 5
04

Burden of proof on the appeal

Holding

The burden lay on the Appellant to show the trial court failed to properly analyze the evidence, and he did not discharge it

Reasoning

The evidence before the trial court comprised the supporting and replying affidavits and annexures. The Appellant did not identify in submissions what evidence the court failed to consider. Notably, the Defendant, Musa Nyagol Sule, raised no complaint that his family had not received its 50% share. The Appellant's displeasure arose from the distribution within the Arodi family, not from any breach by the Defendant.

p. 4

Legal principles established

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  • A first appellate court must reconsider the whole evidence, re-evaluate it and arrive at its own independent conclusion while making allowance for the fact that it did not see or hear the witnesses
  • A suit that has been withdrawn is an ended suit and the only remedy is to file a fresh suit
  • Joinder of parties must comply with the rules on joinder; parties joined without leave are improperly before court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondents

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Kisumu (Kisumu CMC EL Case No. 414 of 2018)
Kisumu CMC EL Case No. 414 of 2018
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Senior Principal Magistrate in Kisumu CMC EL Case No. 414 of 2018

Relief refused

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Setting aside of the trial court's ruling of 27th July, 2023 and substitution with an order dismissing the suit with costs

The appeal was against a ruling, not a judgement, the consent order had been complied with, the grounds of appeal were not proved, and there was no suit in existence to dismiss as it had been withdrawn

p. 5

Costs

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.

This being a first appeal the court has a duty to reconsider the whole evidence produced before the trial court, re-evaluate it and arrive at its own independent conclusion.
p. 3Duty of a first appellate court
The starting point is that the suit had been withdrawn vide the consent order. A suit that has been withdrawn is an ended suit.
p. 5Effect of withdrawal of a suit
The Interested Parties who are in this appeal listed as Respondents are improperly before court. They are strangers in these proceedings.
p. 5Improper joinder of interested parties
The appeal lacks merit and is hereby dismissed.
p. 5Final orders - dismissal of the appeal
Costs to the Respondents.
p. 5Final orders - costs

Issues in the judgment

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minor

The judgment variously refers to a consent order dated 24th September, 2018 and another dated 2nd October, 2018 without clarifying whether they are one and the same

minor

The suit land parcel number appears inconsistently as Kisumu/kasule/545 and Kisumu/Kasule/9395 in the application heading

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, "Midumbi (Suing as Personal Representative of the Estate of the Late Polycap Otieno Arodi - Deceased) v Sule & 6 others (Environment and Land Appeal E009 of 2023) [2025] KEELC 4080 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (Memorandum of Appeal dated 14th August, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4080/eng@2025-05-29

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