[2013] KEHC 4948 (KLR)
The court found that the Appeals Committee was not illegally constituted by sitting with more than three members, as the law only required a minimum of three and did not prohibit a larger panel. The court further held that the appellant's claim was fundamentally based on trust, a matter outside the jurisdiction of...
Source-derived case information.
- Citation
- [2013] KEHC 4948 (KLR)
- Parties
- Appellant: John Mbalasi Mugumba; Respondent: Enock Isiaho Mukumba
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35A of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Land Disputes Tribunal Jurisdiction, Trust in Land, Composition of Appeals Committee
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbalasi Mugumba
Appellant
Enock Isiaho Mukumba
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Appeals Committee was illegally constituted by sitting with more than three members.
- 2 Whether the Tribunals had jurisdiction to determine a claim based on trust.
- 3 Whether the appellant proved his case to the required standard.
Ratio Decidendi
The court found that the Appeals Committee was not illegally constituted by sitting with more than three members, as the law only required a minimum of three and did not prohibit a larger panel. The court further held that the appellant's claim was fundamentally based on trust, a matter outside the jurisdiction of both the Land Disputes Tribunal and the Appeals Committee. As such, the Tribunals' dismissal of the claim, even if not expressly on jurisdictional grounds, was correct in law. The appeal was therefore dismissed for lack of merit, and costs were awarded 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
21 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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JOHN MBALASI MUGUMBA ......................................... APPELLANT
V E R S U S
ENOCK ISIAHO MUKUMBA ....................................... RESPONDENT
J U D G M E N T
This is an appeal from the Western Provincial Land Disputes Appeals Committee. The grounds of appeal are that the Tribunal was illegally constituted and the Tribunal erred in law by holding that there was no evidence to prove the appellant’s case. Parties agreed to proceed with the appeal by way of written submissions.
Counsel for the appellant submitted that Section 8(b) of the now repealed Act number 18 of 1990 stipulated that the Appeals Committee was required to sit in a panel of three members. The requirement is mandatory. The appellant’s appeal was heard by six members. Secondly, counsel submitted that the appellant proved his case to the required standard before the Tribunals. He proved that he had a right to work on land parcel number ISUKHA/MUKHONJE/546.
On the part of the respondent, counsel submitted that both tribunals lacked jurisdiction to deliberate on the dispute. The appellant’s claim was based on trust and the Tribunals could not entertain it. Further, if the appeal succeeds, the decision of the Shinyalu Land Dispute Tribunal will stand and the Tribunal dismissed the appellant’s case.
Section 8(a) of the now repealed Act number 18 of 1990 stated that an appeal to the High Court from the Appeals Committee shall be on issues of law only. Counsel for the appellant submitted that the panel was illegally constituted. Section 8(5) of the then Act allowed the Appeals Committee to sit in panels of three members. The main issue is whether the appellant was prejudiced by the fact the members were more than three. The Appeals Committee that decided the appeal had seven members including the Chairman. There was nothing wrong in the composition of the panel. It would have been illegal if the panel consisted of one or two members only. The fact that there were more than three members of the Tribunal does not render sits decision unlawful. In fact such a unanimous decision holds more weight.
The next issue being raised is that the appellant proved his case as required. The appellant’s claim was that plot number ISUKHA/MUKHONJE/546 was ancestral land. The respondent was registered as the proprietor during land demarcation and adjudication in the 1970s to hold in trust for himself and other brothers. The claimant’s evidence was that he wanted the land to be sub-divided amongst the brothers but the respondent had refused. The respondent testified that the four sons were each given their respective plots. Isutsa was given plot number 531, Mbalasi (appellant) got plot number 92, Lumiti had plot number 502 and he got plot number 546 which included some portions of land which he had bought himself.
It is evident that the appellant’s claim was not one based on a right to work on land but it was based on Trust. The two Tribunals lacked jurisdiction to entertain the claim. The Tribunals dismissed the claim though not on lack of jurisdiction. The effect is the same. The claim was dismissed. Allowing the appeal would be tantamount to clothing the two tribunals with jurisdiction to determine the suit. That in effect would be illegal as the Tribunals could not have determined on issue based on trust. The contention that it was a right to work on the land is just a cover up. The next question would be, how does that right to work on someone else’s land accrue and the answer would be that the owner was holding the land in trust.
In the end, I do find that the appeal lacks merit and t+he same is hereby dismissed with costs to the respondent.
Delivered, dated and signed at Kakamega this 27th day of February, 2013
SAID J. CHITEMBWE
J U D G E