[2004] KEHC 2257 (KLR)
The High Court held that the trial magistrate was correct in setting aside the previous order adopting the District Tribunal's award as a judgment of the court, since that order was made without knowledge of the material fact that the Provincial Tribunal had overturned the District Tribunal's decision on appeal. The...
Source-derived case information.
- Citation
- [2004] KEHC 2257 (KLR)
- Parties
- Appellant: Jacob Mbuthia Githaiga; Appellant: Musa Chege Githaiga; Appellant: Mururia Waiya; Appellant: Elizabeth Wangari Nguku; Respondent: Jeremiah Kabuku Githaiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 435 of 2001
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- ARM Visram
- Legal Topics
- Land Disputes Tribunal Awards, Setting Aside Judgment, Jurisdiction of Magistrate, Change of Advocates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Mbuthia Githaiga
Appellant
Musa Chege Githaiga
Appellant
Mururia Waiya
Appellant
Elizabeth Wangari Nguku
Appellant
Jeremiah Kabuku Githaiga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to set aside a judgment previously entered adopting the District Land Disputes Tribunal award as a court judgment.
- 2 Whether the application to set aside was properly before the lower court given the issue of advocates on record.
Ratio Decidendi
The High Court held that the trial magistrate was correct in setting aside the previous order adopting the District Tribunal's award as a judgment of the court, since that order was made without knowledge of the material fact that the Provincial Tribunal had overturned the District Tribunal's decision on appeal. The court further found that the application to set aside was properly before the lower court because leave to change advocates was sought and granted, and the order to that effect was on record. The appellants' arguments on both jurisdiction and procedural impropriety were found to be without merit. Accordingly, the appeal was dismissed with costs.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 435 OF 2001
JACOB MBUTHIA GITHAIGA
MUSA CHEGE GITHAIGA
MURURIA WAIYA ………...……… APPELLANTS
ELIZABETH WANGARI NGUKU
VERSUS
JEREMIAH KABUKU GITHAIGA …………………… RESPONDENT
JUDGMENT
This is an appeal against the decision of Kangema Senior Principal Magistrate, Mr Abdul El-Kindly, made on July 20, 2001 in Land Disputes Case No 9 of 2001.
In a short seven line ruling the Hon Senior Principal Magistrate set aside the previous orders of the court which had adopted the award of the Land Disputes Tribunal of Mathioya District in Cause No 9 of 2001 as a Judgment of the Court. The order to set aside followed an application by the Defendant by way of a Notice of Motion dated June 4, 2001 in which, among other things, the Defendant/Applicant averred that the Judgment and decree had been entered by the lower court without knowledge of a material fact that the Nyeri Provincial Land Disputes Tribunal had overturned the decision of the aforesaid Mathioya District Tribunal on appeal.
The Appellant, in a Memorandum of Appeal listing six grounds, argued before this Court that having entered Judgment, the Trial Magistrate had no jurisdiction to reverse the decision. He further argued that the application to set aside was not properly before the Lower Court as the advocates who filed the application were not properly on record. Having perused the record of proceedings, I find that neither of these two arguments have any merit or substance. One of the prayers in the application before the Court dated June 4, 2001 asked for leave to the defendant to change his advocates, and for advocates filing the application to be appointed his advocates. That leave was indeed granted and an order extracted. That order is exhibited on page 41 A of the Record.
The Magistrate was equally correct in his decision to set aside the previous order which had been made without knowledge of a material fact, that the District Tribunal’s decision had been overturned on appeal by the Provincial Tribunal. Had that fact been brought to the attention of the Magistrate he would not have entered the District Tribunal’s award as a Judgment of the Court.
Accordingly, I dismiss this appeal with costs.
Dated and delivered at Nairobi this 18th day of May, 2004.
ALNASHIR VISRAM
JUDGE