[2006] KEHC 2001 (KLR)
The High Court held that the Senior Resident Magistrate erred by determining the timeliness of the appeal to the Provincial Appeals Committee, as this was not a matter properly before her. The magistrate should have stayed the adoption of the Land Disputes Tribunal award pending the outcome of the appeal. The court...
Source-derived case information.
- Citation
- [2006] KEHC 2001 (KLR)
- Parties
- Appellant: Jacob S. A. Obulemire; Respondent: Samson Ayuku Opiayo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 69 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Land Disputes Tribunal Awards, Appeals Out of Time, Adoption of Awards, Jurisdiction of Magistrate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob S. A. Obulemire
Appellant
Samson Ayuku Opiayo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Senior Resident Magistrate had jurisdiction to determine if the appeal to the Provincial Appeals Committee was filed out of time.
- 2 Whether the adoption of the Land Disputes Tribunal award as a judgment of the court was proper in light of a pending appeal.
Ratio Decidendi
The High Court held that the Senior Resident Magistrate erred by determining the timeliness of the appeal to the Provincial Appeals Committee, as this was not a matter properly before her. The magistrate should have stayed the adoption of the Land Disputes Tribunal award pending the outcome of the appeal. The court found that the trial court misdirected itself by confirming the award as a judgment of the court while an appeal was pending. Consequently, the High Court set aside the magistrate's decision and directed that the adoption of the award should await the outcome of the appeal before the Western Provincial Appeals Committee.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The decision of the Senior Resident Magistrate at Kakamega (J. Thuita Ms.) made on 29.9.00 in Kakamega Misc. Award No.173 of 1999 is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Appeal 69 of 2000
JACOB S. A. OBULEMIRE ....................................................................APPELLANT
V E R S U S
SAMSON AYUKU OPIAYO ...............................................................RESPONDENT
J U D G M E N T
Both the Appellant and the Respondent were involved in a dispute over land title No. Marama/Shikunga/1033 which dispute was determined by Butere Land Disputes in 1999. The award was read to the parties on 11. 3.2000. The decision was adopted as a judgment of the court on 28. 9.2000 by Senior Resident Magistrate (J. Thuita, Ms.) in her Ruling in Kakamega C.M. Misc. Award (case) No. 173 of 1999. The Senior Resident Magistrate held that the appeal filed on 3. 3.2000 in the Appeals Committee by the Appellant from the decision of the Butere Land Disputes Tribunal was out of time as it was filed after 30 days and therefore she saw no reason why the award could not be confirmed as a judgment of the court.
In the four grounds set out in the memorandum of appeal, the Appellant faulted the Ruling of the Senior Resident Magistrate. The main ground was No. 3 in which the Appellant contended:-
“4. The learned trial magistrate erred in law and fact in not appreciating that the appeal at the Provincial Land Disputes Tribunal was filed on 27. 3.2000 while the award was read to both parties on 7. 3.00, a fact which proves that the appeal was filed well within time.”
The record of appeal is messy and perhaps a neater copy ought to have been required. It has not been easy perusing the record whose many pages are indecipherable and wrongly paged.
Be that as it may, the decision whether or not the appeal to the Provincial Appeals Committee was filed in time was not a matter for the Senior Resident Magistrate to make. The Senior Resident Magistrate was not seized of the matter and there was nothing before her on the basis of which the court could make that determination. Once the Senior Resident Magistrate was satisfied that an appeal had been filed or was pending before the Appeal Committee, she ought to have kept the application before her in abeyance pending the outcome of the appeal. The trial court misdirected its mind on this point and proceeded, wrongly in my view, to hold that the appeal before the Appeals Committee was out of time and for that reason endorsed the award as a judgment of the court.
In the light of the foregoing, I allow the appeal and set aside the decision of the Senior Resident Magistrate at Kakamega (J. Thuita Ms.) made on 29. 9.00 in Kakamega Misc. Award No.173 of 1999. I direct that the adoption of the award shall await the outcome of the appeal before the Western Provincial Appeals Committee. Each party shall bear its own costs.
Dated, signed and delivered at Kakamega this 5th day of May 2006.
G. B. M. KARIUKI
J U D G E