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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court failed to find errors apparent on the face of the record in refusing review
- 2.Whether execution of the decree was caught by limitation of actions
- 3.Whether the appellant was a party or director capable of satisfying the decree
- 4.Whether the 2nd respondent had locus standi as nominee of her deceased husband
- 5.Whether the trial court acted in excess of jurisdiction
- 6.Whether the mediation agreement should have been set aside
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#Setting aside/review of the ruling dismissing the application dated 16/5/2024 and stay of the order of 8/5/2024
No error or mistake apparent on the face of the record; grounds of appeal were not raised before the trial court; the appellant was estopped from reneging on his conduct
Costs
The appeal is dismissed with costs (costs to the respondents).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is I find no errors, both in law and in facts, in the ruling of 16/5/2024. The appeal is dismissed with costs.
The doctrine of estoppel prevents the appellant from reneging on his words or conduct at the appellate stage.
A party cannot blow hot and cold, approbate and reprobate at the same time.
An error apparent on the face of the record stares one in the face with reasonably no two opinions about it
The court held that a new point which had not been raised at the trial cannot be taken on appeal unless with leave of the court.
Issues in the judgment
#Internal date inconsistency: the impugned application is dated 16/5/2024 but described in places as dated 16/5/2020; the ruling appealed against is referred to as 'ruling of 16/5/2024' in the disposition although the order under review was dated 20/3/2024
An application dated 16/12/2023 is stated to have been placed for hearing on 1/3/2023, an earlier date
Typographical date error 'decree dated 13/3/21009'
The names of the respondents are not fully set out in the formal cause title; they are inferred from the narrative
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.