[2010] KEHC 1522 (KLR)
The High Court held that it has no jurisdiction to grant leave to appeal directly from a decision of the Land Disputes Tribunal. The Land Disputes Tribunals Act prescribes a specific appellate process: a dissatisfied party must first appeal to the Provincial Appeals Committee within 30 days. Only after the Appeals...
Source-derived case information.
- Citation
- [2010] KEHC 1522 (KLR)
- Parties
- Applicant: Kanyi Macera; Respondent: James Mwangi Kanyi; Respondent: Samuel Ndambiri Kanyi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 35A of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal, Jurisdiction of High Court, Land Disputes Tribunal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanyi Macera
Applicant
James Mwangi Kanyi
Respondent
Samuel Ndambiri Kanyi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Does the High Court have jurisdiction to grant leave to appeal against an award of the Land Disputes Tribunal?
- 2 Is there a right of appeal from the Land Disputes Tribunal to the High Court without first appealing to the Provincial Appeals Committee?
- 3 Can the court extend time to file an appeal where no right of appeal exists?
Ratio Decidendi
The High Court held that it has no jurisdiction to grant leave to appeal directly from a decision of the Land Disputes Tribunal. The Land Disputes Tribunals Act prescribes a specific appellate process: a dissatisfied party must first appeal to the Provincial Appeals Committee within 30 days. Only after the Appeals Committee's decision can a further appeal be made to the High Court, and only on a point of law. Since the applicant did not appeal to the Appeals Committee and sought to appeal directly to the High Court, no right of appeal exists in law. The application to extend time to file an appeal that cannot lawfully be entertained is misconceived and must be dismissed.
Court Disposition
application dismissed with costs
Orders
- The application dated 17.06.09 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Miscellaneous Application 35A of 2009
KANYI MACERA………….………………….…………….APPLICANT
VESUS
JAMES MWANGI KANYI………….…...….……..1ST RESPONDENT
SAMUEL NDAMBIRI KANYI…………………….2ND RESPONDENT
R U L I N G In his Application dated 17. 06. 09, the applicant prays for 3 orders.Prayer No. 2 which is for injunctive orders and prayer No.3 which is for stay of execution are dependent on the outcome of prayer No. 1 which is to the effect
“ That this Honourable Court be pleased to grant the Applicant leave to Appeal in the High Court against the award and judgment entered in terms of award of Gichugu Land Disputes Tribunal dated 23rd January, 2008 in Kerugoya PMC LDT No. 99 of 2006 out of time”.
The same is supported by the Applicant’s Affidavit dated 16. 06. 09, and opposed by the replying affidavit of the 1st Respondent and sworn on his own behalf and that of the 2nd Respondent dated 2. 03. 2010.
I have considered the application along with the rival affidavits.The Application revolves around only one point of law i.e.does an Appeal lie to this court from the decision of the Land Disputes Tribunal?The answer is clear and simple.It is “No”.The Land Disputes Act clearly spells out the procedure to be followed from the institution of the claim up to Appeal level.It is a self sufficient Act of Parliament that covers all aspects of its operation.The same must therefore be applied strictly and in isolation to the provisions of the Civil Procedure Act and Rules unless such are directly adopted by the Act.
Under Section 8(1) of the Land Disputes Tribunal act, any party who is dissatisfied with a decision of the Land Disputes Tribunal has 30 days within which to file an Appeal to the Provincial Appeals Committee.The Applicant herein did not do so.It is only from the decision of the Appeals Committee that an aggrieved party can come to this court under Section 8(1) of the Act on Appeal.This appeal must be on a point of law other than customary law which the Judge must certify before admitting such an Appeal.
There is therefore absolutely no right of Appeal from a decision of the Land Disputes Tribunal to this court.If such right does not exist, then the applicant herein cannot move this court for leave to file the said Appeal. Such a right of Appeal must exist in the first place.It does not in this case.The Application to extend time to file an Appeal that cannot lie before this court is a bad application and one that calls for dismissal.
The Application dated 17. 06. 09 is hereby dismissed with costs to the Respondents.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 27th day of September 2010.
In presence of:-All parties & Mr. Munene for Mr. Ngigi for Respondent.