[2007] KEHC 2649 (KLR)
The court found that leave to appeal was not necessary because the applicant was entitled to file an appeal within 60 days of the Tribunal's decision, and the appeal was filed within that period. On the issue of jurisdiction, the court held that the Tribunal's finding that the dispute related to a boundary, not...
Source-derived case information.
- Citation
- [2007] KEHC 2649 (KLR)
- Parties
- Appellant: Julia Muthoni Gathego; Respondent: Henry Muhia Kameko substituted by Obadiah Macharia Muhia and Joseph Ngugi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Leave to Appeal and Certification of Point of Law
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Appeals From Tribunal Decisions, Certification of Point of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Muthoni Gathego
Appellant
Henry Muhia Kameko substituted by Obadiah Macharia Muhia and Joseph Ngugi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Leave to Appeal and Certification of Point of Law
Legal Issues
- 1 Whether leave to appeal from the decision of the Provincial Land Dispute Tribunal was necessary.
- 2 Whether the appeal raised a point of law requiring certification by the court.
- 3 Whether the Land Dispute Tribunal had jurisdiction over disputes involving title to land.
Ratio Decidendi
The court found that leave to appeal was not necessary because the applicant was entitled to file an appeal within 60 days of the Tribunal's decision, and the appeal was filed within that period. On the issue of jurisdiction, the court held that the Tribunal's finding that the dispute related to a boundary, not title, meant it acted within its statutory jurisdiction under Section 3(1) of the Land Dispute Tribunal Act. Consequently, the court determined that no point of law arose for certification, as the Tribunal did not exceed its jurisdiction. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application dated 28th April 2003 is dismissed with costs to the respondent.
- Prayer for certification of a point of law is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 53 of 2003
JULIA MUTHONI GATHEGO……………………………..…………..APPELLANT
Versus
HENRY MUHIA KAMEKO Substituted by OBADIAH MACHARIA
MUHIA and JOSEPH NGUGI……………….................…………..RESPONDENT
RULING
An application is made by the proposed Appellant by way of Notice of Motion dated 28th April 2003 seeking that the Applicant be given leave to file an appeal from the decision of the Provincial Land Dispute Tribunal Nyeri. The Applicant also sought that the court would certify that there is a point of law raised by the Applicant in her Memorandum of Appeal. In respect of the first prayer I find that I am in agreement with the Respondent’s counsel when he said that such leave is not necessary because the Applicant was entitled to file an appeal within 60 days of the Tribunal’s decision which decision was delivered on 25th March 2003. The Memorandum of Appeal herein was filed on 28th April 2003 which was within time of the period allowed for such an appeal. It therefore follows that the first prayer of the Applicant is superfluous and does not require this court’s decision. In respect of the 2nd Prayer that the court do certify that a point of law is raised by the Applicant, the same can only be appreciated by considering the grounds raised by the Appellant. This is the ground that the Applicant has put in her Memorandum:
“THAT the Provincial and the District Lands Disputes Tribunal had no jurisdictions to entertain this matter touching as it is on issue of TITLE. Failure of justice was therefore occasioned.”
The jurisdiction of the Tribunal is to be found in Section 3(1) of the Land Dispute Tribunal Act 1990. That section provides as follows:
“Subject to this Act, all cases of a civil nature involving a dispute as to -
(a) the division of, or the determination of boundaries to land, including land held in common;
(b) a claim to occupy or work land; or
(c) trespass to land,
shall be heard and determined by a Tribunal established under section 4. ”
The Tribunal in its deliberation made a finding that the parties to the dispute had their own title. They determined that the dispute related to the boundary of the property. When one considers that finding in the light of the jurisdiction given by the Act it is clear that the Tribunal did not exceed their jurisdiction. That being the finding of this court the court does not certify that the appeal raises a point of law. Accordingly prayer No. 2 of the application is dismissed. In view of the earlier finding of the court, the Applicant’s application dated 28th April 2003 is hereby dismissed with costs to the Respondent.
Dated and delivered at Nyeri this 20th day of July 2007.
MARY KASANGO
JUDGE