[2008] KEHC 3811 (KLR)
The High Court lacks jurisdiction to entertain an appeal directly from the Land Disputes Tribunal without the appellant first exhausting the appeal process before the Provincial Appeals Committee as mandated by Section 8(1) of the Land Disputes Tribunals Act. Furthermore, even if the appeal were competent, it could...
Source-derived case information.
- Citation
- [2008] KEHC 3811 (KLR)
- Parties
- Appellant: Mary Wangari Gakuu; Respondent: Jane Nyambura Wainaina; Respondent: Thika Chief Magistrate; Respondent: Thika District Land Registrar; Respondent: Thika District Land Surveyor
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 287 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection and Application to Set Appeal for Hearing
- Outcome
- appeal and application struck out as incompetent; costs awarded to respondents
- Judges
- JL Osiemo
- Legal Topics
- Jurisdiction of High Court, Appeals Process, Land Disputes Tribunal, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Wangari Gakuu
Appellant
Jane Nyambura Wainaina
Respondent
Thika Chief Magistrate
Respondent
Thika District Land Registrar
Respondent
Thika District Land Surveyor
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection and Application to Set Appeal for Hearing
Legal Issues
- 1 Whether the High Court has jurisdiction to hear an appeal directly from the Land Disputes Tribunal without exhaustion of the Provincial Appeals Committee process.
- 2 Whether the appeal and the notice of motion are competent and properly before the court.
- 3 Whether the appeal can be set down for hearing before admission by a judge as required by statute.
Ratio Decidendi
The High Court lacks jurisdiction to entertain an appeal directly from the Land Disputes Tribunal without the appellant first exhausting the appeal process before the Provincial Appeals Committee as mandated by Section 8(1) of the Land Disputes Tribunals Act. Furthermore, even if the appeal were competent, it could not be set down for hearing as it had not been admitted by a judge certifying that an issue of law was involved, as required by the proviso to Section 8(9) of the Act. The appeal and the notice of motion are therefore incompetent and improperly before the court, warranting their striking out.
Court Disposition
appeal and application struck out as incompetent; costs awarded to respondents
Orders
- The appellant's appeal is struck out for being incompetent.
- The appellant's notice of motion is struck out for being incompetent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 287 of 2008
MARY WANGARI GAKUU………….........………………APPELLANT
VERSUS
JANE NYAMBURA WAINAINA………….……….1ST RESPONDENT
THIKA CHIEF MAGISTRATE…………….……….2ND RESPONDENT
THIKA DISTRICT LAND REGISTRAR….….……3RD RESPONDENT
THIKA DISTRICT LAND SURBEYOR…….……..4TH RESPONDENT
R U L I N G
The appellant and the respondent had a dispute over Land being Parcel No. LOC. 16/MWAGU/625. The same was referred to Thika Land Disputes Tribunal being claim No. 32 of 2007. The Tribunal after hearing the evidence of both parcels awarded the respondent 0. 25 of an acre in addition to 0. 75 of an acre making it 1 acre in total out of the suit land. The Tribunal further ordered that the suit land be surveyed and boundaries put in order to clearly give the Claimant/Respondent 0. 25 of an acre corresponding with the title deed already held. The decision of the Tribunal was filed in Chief Magistrate’s Court Thika on 31st March 2008 and was entered as judgment of the court on 28th April 2008. The appellant being aggrieved by that decision of the Tribunal appealed to this court. The appeal was filed on 28th May 2008.
On 24th June 2008 the appellant filed an application by way of Notice of Motion seeking an order that appeal be set down for hearing at the earliest convenience. The application is based on the ground that the intended appeal was certified urgent by the court on 3rd June 2008 and was fixed for hearing interpartes on 17th June 2008 with due respect to counsel, this is incorrect. What was certified urgent on 3rd June 2008 is an application by way of notice of motion dated 28th May 2008 which sought injunctive orders to restrain the respondent from effecting the decision of the Tribunal.
When the Notice of Motion dated 24th June 2009 was served upon the respondent, he raised a preliminary objection on the ground that the same was unprocedural, defective and bad in law.
Mr. Muturi for the respondent submitted that in view of Section 7 (1) and (2) and Section 8 (1) of the Land Disputes Tribunal Act No 18 of 1990 both the Appeal and the Notice of Motion are incompetent and improperly before this court as the same were filed after the Award of the Tribunal had been entered as judgment of the court culminating the same becoming a decree of the court. Counsel urged the court to strike out both the application and the appeal.
Mr. Meso for the 2nd, 3rd and 4th Respondents associated himself with the submissions by Counsel for the 1st Respondent and added that this court lacks jurisdiction to entertain the appeal. He submitted that the right of appeal to the High Court is only available after the aggrieved party has lost in the Provincial Appeals Committee. While Mr. Onyango for the appellant submitted that the appeal is competent and properly before this court.
The right of appeal from the decision of the Tribunal is donated by Section 8 (1) and (9) of the Land Disputes Tribunals Act No 18 of 1990 which provides as follows:
“8(1)” Any party to a dispute under Section 3 who is aggrieved by the decision of the Tribunal may within 30 days of the decision, appeal to the Appeals Committee Constituted for the province in which the land which is the subject matter of the dispute is situated.”
“8 (9)” Either party to the appeal may appeal from the decision of the Appeals Committee to the High Court on a point of law within 60 days from the date of the decision complained of.”
It is clear from the above Statutory Provisions that the appellant would only come to the High Court as a second appeal after the appeal against the decision of the Provincial Appeals Committee.
Further I would like to comment on the Appellant’s appeal. The Appellant’s notice of motion of 24th June 2008 seeking order that the intended appeal filed on 28th August 2008 be set down for hearing is premature as the same has not been admitted. See the proviso to Section 8 (9) of the Land Disputes Tribunal Act No. 18 of 1999 which provides that:-
“No appeal shall be admitted to hearing by the court unless a Judge of that court has certified that an issue of law (other than customary law) is involved.”
Even if the appeal was competent, the same could not be set down for hearing as the same had not been admitted as provided for in the Act.
Accordingly for the reasons stated above the appellants appeal and the notice of motion are struck out for being incompetent. The respondents are awarded costs of the application.
Dated and delivered at Nairobi this 17th day of October 2008.
J. L. A. OSIEMO
JUDGE