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JudgmentJANE MUTIVA MAJANI VS JANE MWANIKI4 min read

JANE MUTIVA MAJANI VS JANE MWANIKI

High Court at Mombasa High Court · · Odera Teresa Achieng



(Being an Appeal from the Ruling and order dated 30th August 2022 posted virtually on 1st November 2022 in Mombasa CMCC NO.2257 OF 2001 (J.B. Kalo Chief Magistrate)

  1. The appellant filed the MEMORANDUM OF APPEAL dated 13.12.22 herein  on 14.12.22 citing the following grounds :
  2. The learned trial Court erred in law in observing and concluding that the failure to cite and invoke order 17 rule 2 rendered the notice of Motion application defective or fatal.
  3. The trial Court erred in law in failing to find that there had been unconscionable excessive delay in prosecuting the suit filed in 2001 which solely sought the equitable Order of injunction against the Appellant who was a stranger to the Respondent’s goodwill claim.
  4. The learned trial magistrate should have found that the Respondent’s equitable claim of injunction not prosecuted for over 10 years after the Respondent had closed her case was abhorrent in law and fact and the Appellant’s application should have been allowed.
  5. The learned trial magistrate failed to appreciate that the Constitutional and legal prescription for a fair trial would not be met and achieved where there had been over 20 years delay in prosecuting the equitable claim filed by the Respondent against the Appellant.
  6. The learned trial Court erred in law and failed to appreciate and apply the relevant equitable principles and law upon which the Respondents claim was grounded.
  7. The trial magistrate erred in fact and in law in failing to appreciate that the Respondents case was concluded and closed and that without the full record of evidence that had been tendered availed the subsequent intended hearing would be unfair, unjust and irredeemable beyond any mitigation.
  8. The learned magistrate should have found that further hearing of witnesses and or recalling of witnesses after the Respondent’s case had been closed for over 10 years would render and result into a mistrial and an abhorrent miscarriage of justice to the prejudice of the Appellant.
  9. The learned trial magistrate should have found and held that there was no requirement prior to the promulgation of the Civil Procedure Act 2010 to have filed witness statements together with Plaintiff or Defence.  The Court erred in law and fact in finding and holding the contrary to the prejudice of the Appellant.
  10. The trial magistrate erred in fact and law when dismissing the Appellants application dated 28th January 2022 and consequently allowing the Respondent to re-litigate and re-open her Case that had been closed for over 10 years.
  11. The learned trial magistrate erred in law in failing to appreciate that the Court in the circumstances was incapable of grant the equitable order of injunction prayed for in the suit and the court would not make or issue an order in vain as it would amount to abuse of the process of the Court.

REASONS WHEREFORE the Appellant prays: -

  1. This Appeal be allowed with costs and the Ruling dated 30th August 2022 by the Chief Magistrate in Mombasa, Chief Magistrate’s Court Case No.2257 of 2001 be quashed and set aside and the Appellants Notice of motion dated 28th January 2022 be allowed as prayed with costs.
  2. Any other order be given as the Court may deem just to grant.
  3. The appeal proceeded by way of written submissions. 
  4. This is the first appellate court and the duty of this court is to re-evaluate the evidence on record and arrive at its own decision bearing in mind that it had no opportunity to see the witnesses as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR.
  5. I have perused this appeal and the record of the lower court. It is clear that the subjet matter  in the lower court  is a land matter whereby the appellant who is the plaintiff seeks that the respondent be restrained from trespassing, developing or dealing in any way whatsoever with the subject property. She alleges to have bought the goodwill in the property and obtained approvals from the Municipal Council of Mombasa and was surprised to learn that the respondent has commenced construction on that land. The lower court matter which is the subject of this appeal is thus a land matter and the question I have posed to ask my self is whether this court has jurisdiction to hear and determine land matters. Article at the time of filing of the judicial review proceedings herein  in the year 2001, the Environment and  Land Court  was yet to be established.

The  Land and Environment Court  has since been established upon the promulgation of the Constituion of Kenya 2010. It is trite law that Jurisdiction is every thing as was held in the celebrated Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA.  relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: 

…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

  1. This court lacks jurisdiction to hear and determine Land and environment cases by dint of Article `165 5(b)  of the Constitution of Kenya  .
  2. The appeal is thus struck   out for want of Jurisdiction .
  3. Costs of Kshs 50,000/= to the respondent.


    JANE MUTIVA MAJANI VS JANE MWANIKI JANE MUTIVA MAJANI VS JANE MWANIKI