Mogaka & 2 others v Kebati & another (Environment & Land Case 401 of 2013) [2023] KEELC 22293 (KLR) (19 December 2023) (Ruling)

Key Facts

Issues

• The court addressed whether cautions placed by the 1st plaintiff on the 1st defendant's land parcel (Central Kitutu/Mwabundusi/347) should be removed after the court's dismissal of the plaintiffs' claim. The plaintiffs had previously alleged overlapping land boundaries, but the court found the defendant's title valid and the plaintiffs' interest non-existent. The caution removal application was granted as the dispute was resolved.
• The court considered the 1st plaintiff's request to extend time for filing an appeal under section 79G of the Civil Procedure Act. The judge clarified that such extensions must be sought from the Court of Appeal, not the Environment and Land Court, as the relevant rules specify jurisdiction lies with the superior court. The application was dismissed for being filed in the wrong forum.

Holdings

• The application by the 1st defendant to remove cautions registered on his land parcel (Central Kitutu/Mwabundusi/347) was allowed. The court held that the plaintiffs' case was previously dismissed, confirming the 1st defendant's good title. The cautions registered on 26 July 2012 and 12 September 2017 by the 1st plaintiff were ordered removed. The 1st defendant will recover costs from the 1st plaintiff for opposing the application.
• The application by the 1st plaintiff to extend time to file a record of appeal out of time was dismissed. The court determined that section 79G of the Civil Procedure Act applies to appeals from subordinate courts to the High Court, not appeals from the High Court to the Court of Appeal. The correct forum for such an application is the Court of Appeal, not this court. The application was thus in the wrong forum and dismissed with costs to the 1st defendant.

Remedies

• The court dismissed the first plaintiff's application to extend time to file an appeal out of time, ruling it was filed in the wrong forum. The 1st defendant was awarded costs.
• The court granted the first defendant's application to remove cautions registered by the first plaintiff against the land parcel Central Kitutu/Mwabundusi/347 (cautions dated 26 July 2012 and 12 September 2017). The 1st plaintiff is liable for the costs of this application.

Legal Principles

• The Court of Appeal Rules (rule 4) require applications for time extensions to file appeals to be submitted to the Court of Appeal. This case clarifies that the Environment and Land Court lacks jurisdiction to grant such extensions, making the application in the wrong forum.
• The court applied res judicata to determine that once a case is dismissed on its merits, the plaintiffs can no longer assert any legal interest in the disputed land. This principle justified removing the cautions registered by the plaintiff against the defendant's land title.

Cited Statute

• Appellate Jurisdiction Act (Cap 9) Laws of Kenya
• Civil Procedure Act (Cap 21) Laws of Kenya

Judge Name

Passage Text

• I held that the suit land is properly located and is distinct from the land parcel Central Kitutu/Mwabundusi/833 on the ground. I thus proceeded to dismiss the case of the plaintiffs.
• The court that has jurisdiction to allow for an extension of time to file a record of appeal out of time, is not this court, but the Court of Appeal. The application of the 1st plaintiff seeking extension of time to file record of appeal out of time is thus in the wrong forum and I have no option but to dismiss it, which I hereby do, with costs to the 1st defendant.
• For the reasons above, I allow the application dated 21 July 2023 and order the Land Registrar to proceed and remove the cautions registered on 26 July 2012 and 12 September 2017 in the register of the land parcel Central Kitutu/Mwabundusi/347.