[2023] KEELC 16768 (KLR)
The court cannot proceed to render a judgment on the appeal until it is satisfied that it has appellate jurisdiction over the impugned ruling, which was delivered by a Children’s Court under the repealed Children’s Act 2012. The frameworks under both the repealed and current Children’s Acts require that appeals from...
Source-derived case information.
- Citation
- [2023] KEELC 16768 (KLR)
- Parties
- Appellant: Serah Njoki Gituku; Defendant: Molly Kinanu Mithika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E067 of 2021
- Procedural Posture
- Environment and Land Appeal / Order on Jurisdiction Prior to Judgment
- Outcome
- Order reserving judgment vacated; parties to address court on jurisdiction.
- Judges
- BM Eboso
- Legal Topics
- Children Court Jurisdiction, Appellate Jurisdiction, Repealed Legislation Transition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serah Njoki Gituku
Appellant
Molly Kinanu Mithika
Defendant
Procedural Posture
Environment and Land Appeal / Order on Jurisdiction Prior to Judgment
Legal Issues
- 1 Whether the Environment and Land Court has appellate jurisdiction over a ruling delivered by a Children’s Court under the repealed Children’s Act 2012.
- 2 Whether parties should be heard on the question of jurisdiction before the appeal is determined.
Ratio Decidendi
The court cannot proceed to render a judgment on the appeal until it is satisfied that it has appellate jurisdiction over the impugned ruling, which was delivered by a Children’s Court under the repealed Children’s Act 2012. The frameworks under both the repealed and current Children’s Acts require that appeals from the Children’s Court be directed to the High Court. The Environment and Land Court must therefore first determine whether it is the proper appellate forum. To ensure procedural fairness and compliance with jurisdictional requirements, the court vacates the order reserving a judgment date and directs that parties be heard on the question of jurisdiction before any further steps...
Court Disposition
Order reserving judgment vacated; parties to address court on jurisdiction.
Orders
- The order reserving a date for Judgment in this appeal is vacated.
- The court will set a date for parties to address it on the question of appellate jurisdiction.
Full Case Text
Judgment text and source record
21 paragraphs
Gituku v Mithika (Environment and Land Appeal E067 of 2021) [2023] KEELC 16768 (KLR) (15 March 2023) (Order)
Neutral citation: [2023] KEELC 16768 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment and Land Appeal E067 of 2021
BM Eboso, J
March 15, 2023
Between
Serah Njoki Gituku
Appellant
and
Molly Kinanu Mithika
Defendant
(Being an Appeal arising from the Ruling of Hon V Kachuodho, Senior Resident Magistrate, delivered on August 30, 2021 in Thika CMC Children Case No 218 of 2018)
Order
1. This appeal was canvassed through written submissions. It was subsequently reserved for Judgment today. While preparing to write the Judgment, it emerged that the impugned ruling was rendered on August 30, 2021 by a Magistrate Court exercising jurisdiction as a Children’ Court under the repealed Children’s Act 2012 [the repealed Act].
2. Children’s courts were established under Section 73 of the repealed Act and exercised jurisdiction as spelt out under the said Act. Section 80 of the repealed Act contained the following framework on exercise of jurisdiction relating to appeals from Children’s Courts:“80. Unless otherwise provided under this Act, in any civil or criminal proceedings in a children’s court, an appeal shall lie to the High Court and a further appeal to the Court of Appeal.”
3. The Children’s Act of 2012 was repealed by the Children’s Actof 2022. Section 99 of the Children’s Act 2022 contains the following framework on appeals from the Children’s Courts:“99. Unless otherwise provided under this Act, in any civil or criminal proceedings in a children’s court, an appeal shall lie:-a.in the first instance to the High Court on points of fact and law; andb.in the second instance, to the Court of Appeal on points of law only”
4. In light of the above frameworks, there is need for this court to first determine whether it has appellate jurisdiction over the impugned ruling. Consequently, it is necessary that parties to this appeal are granted the opportunity to address the court on the question of its appellate jurisdiction over the impugned ruling which was rendered by a Children’s Court established under Section 73 of the repealed Children Act, 2012. Only after the court is satisfied that it has jurisdiction, will it render a determination in this appeal.
5. Consequently, the order reserving a date for Judgment in this appeal is hereby vacated. The court will set a date when the parties to this appeal will address it on the question of jurisdiction.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 15TH DAY OF MARCH 2023B M EBOSOJUDGEIn the Presence of: -Ms Karongo for the AppellantCourt Assistant: Ms Osodo