[2011] KEHC 2056 (KLR)
The High Court held that there was no competent appeal before it because the reports by the District Surveyor and District Land Registrar were not decrees or orders of the court. The law only allows appeals against decrees or orders, not against reports or other documents unless they are first reduced to a decree or...
Source-derived case information.
- Citation
- [2011] KEHC 2056 (KLR)
- Parties
- Appellant: Beatrice Gicuku; Respondent: Japhet Nguru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 17 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Appeals Against Orders, Jurisdiction of High Court, Decrees and Orders, Survey and Land Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Gicuku
Appellant
Japhet Nguru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether an appeal can lie to the High Court against a surveyor's or land registrar's report not reduced to a decree or order.
- 2 Whether the magistrate's directive permitting appeal against such reports conferred jurisdiction on the High Court.
Ratio Decidendi
The High Court held that there was no competent appeal before it because the reports by the District Surveyor and District Land Registrar were not decrees or orders of the court. The law only allows appeals against decrees or orders, not against reports or other documents unless they are first reduced to a decree or order. The magistrate's directive purporting to allow appeals against such reports was a misdirection and could not confer jurisdiction on the High Court. Consequently, the appeal was found to be incompetent and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT
AT EMBU
HIGH COURT CIVIL APPEAL NO. 17 OF 2005
BEATRICE GICUKU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
VERSUS
JAPHET NGURU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
JUDGMENT
According to the Amended memorandum of Appeal dated 22. 6.2006, this appeal arises from
“The Report dated 30. 9.04 filed by the District Surveyor
on 4. 10. 21004, and the Report dated 16. 9.2004 filed
by the District Land Registrar, Embu on 20. 9.2001
following the orders of the learned SRM,
R. M Mochache on 22. 4.2004 and 16. 9.2004 in
Embu PM’s Award case No. 53 of 2002”
The Appellant has listed 3 grounds of Appeal which I need not repeat for purposes of this short judgment.The Appeal proceeded by way of written submissions which I have read and carefully considered. I must say from the outset that I am in full agreement with the brief submission (1/2 page) of counsel for the Respondent. He has in his short submission just restated and clarified the position in law relating to Appeals. There is no competent Appeal before me on which I can be called upon to make a determination on merit.
As rightly submitted by counsel for the Respondent, an Appeal can only be against a “Decree” of “Order” of the court. It cannot lie against a report filed in court or any other document unless such a report or proceeding is first reduced to a decree or order of the court. It is such a decree or order that is then certified and filed with the Memorandum of Appeal pursuant to order 42(4) of the Civil Procedure rules (as amended)
There cannot be an Appeal to this court against a surveyor’s or Land Registrar’s report. The fact that the magistrate directed that any party who was dissatisfied with the said reports can move to the High Court on appeal against the said reports was a misdirection. The magistrate cannot confer jurisdiction to this court or to his court where none exists in law.
That directive was made in total ignorance of the law. As said earlier, this Appeal is totally incompetent and I must dismiss the same which I hereby do. The Appeal is therefore dismissed with costs to the Respondent.
W. KARANJA
JUDGE
Signed by the above but dated and delivered at Embu this 28th day of July 2011
JUDGE