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ELCDismissedNot stated in judgment (memorandum of appeal dated 31/7/2024)

Wanjala v Director, Basakwa Multipurpose & 5 others (Environment and Land Appeal E019 of 2024) [2025] KEELC 7160 (KLR)

Environment and Land Court
15 October 2025
2,866 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) dismissing a first appeal dated 31/7/2024 against a trial court ruling that refused to review an order of 20/3/2024 directing the County Surveyor, Trans Nzoia, to hive off one acre of the appellant's land in favour of the respondents, and to stay the order of 8/5/2024 adopting a mediation agreement. The appellant argued that the decree of 13/3/2009 was limitation-barred, that he was neither a party nor a director of the 1st respondent when the decree was passed, that he had merely joined as an interested party, and that the 2nd respondent lacked locus standi as nominee of her deceased husband. The court re-evaluated the record and held that none of these grounds was raised, canvassed or determined before the trial court, and a new point cannot be taken on appeal without leave. The court found that the appellant had bound himself to honour the decree, joined the suit by application of 5/7/2021, admitted being vice chairman of the society, and paid Kshs. 33,333/= without objection, so he was estopped from reneging and could not approbate and reprobate. No misconduct, fraud or mistake attending the mediation agreement was proved as required to set it aside, and disputes of nominee capacity belonged before the Co-operative Tribunal under Section 39 of the Co-operative Societies Act. The court found no error apparent on the face of the record and dismissed the appeal with costs on 15/10/2025.

Questions the Court framed

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

  1. 1.Whether the trial court failed to find errors apparent on the face of the record in refusing review
  2. 2.Whether execution of the decree was caught by limitation of actions
  3. 3.Whether the appellant was a party or director capable of satisfying the decree
  4. 4.Whether the 2nd respondent had locus standi as nominee of her deceased husband
  5. 5.Whether the trial court acted in excess of jurisdiction
  6. 6.Whether the mediation agreement should have been set aside

Key legal issues

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01

Whether new issues may be raised on appeal that were not canvassed at trial

Holding

No - issues not pleaded, canvassed and determined at the trial court cannot be raised on appeal without leave

Reasoning

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.

p. 4
02

Whether the appellant was estopped from denying directorship and party status

Holding

Yes - he became a party when he appeared, bound himself to honour the decree, and paid Kshs. 33,333/= without objection

Reasoning

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.

p. 4
03

Whether the mediation agreement should have been set aside for error apparent on the face of the record

Holding

No - the application was not brought under Rule 39(3) of the Court Annexed Mediation Rules and no misconduct, fraud or mistake was proved

Reasoning

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.

p. 5
04

Whether the decree was stale/limitation-barred and the trial court lacked jurisdiction

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs

The bench

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

majority

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

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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

p. 6

Costs

The appeal is dismissed with 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.

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.
p. 6Disposition - appeal dismissed with costs
The doctrine of estoppel prevents the appellant from reneging on his words or conduct at the appellate stage.
p. 4Estoppel by conduct
A party cannot blow hot and cold, approbate and reprobate at the same time.
p. 5Approbate and reprobate
An error apparent on the face of the record stares one in the face with reasonably no two opinions about it
p. 5Error apparent on the face of the record
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.
p. 4New points on appeal

Issues in the judgment

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minor

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

minor

An application dated 16/12/2023 is stated to have been placed for hearing on 1/3/2023, an earlier date

minor

Typographical date error 'decree dated 13/3/21009'

minor

The names of the respondents are not fully set out in the formal cause title; they are inferred from the narrative

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, "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.