[2014] KEELC 440 (KLR)
The court found that the appeal was filed one year after the decision of the Appeals Committee, well outside the statutory sixty-day period prescribed by section 8(a) of the repealed Land Disputes Tribunal Act. The appellants did not seek or obtain leave of the court to file the appeal out of time. The court...
Source-derived case information.
- Citation
- [2014] KEELC 440 (KLR)
- Parties
- Appellant: Mpenzwe Ngoba Mtana; Appellant: Bijuma Ngoba Mtana (suing as the administrator/Legal representative of the estate of the late Don Maurice Mutana); Respondent: Zuhura Shabana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out with costs
- Judges
- OA Angote
- Legal Topics
- Jurisdiction of Land Tribunals, Appeals Out of Time, Registered Land Act, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mpenzwe Ngoba Mtana
Appellant
Bijuma Ngoba Mtana (suing as the administrator/Legal representative of the estate of the late Don Maurice Mutana)
Appellant
Zuhura Shabana
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was filed within the statutory time limit and if leave was required to file out of time.
- 2 Whether the Provincial Land Appeals Tribunal and the District Land Disputes Tribunal had jurisdiction to determine disputes relating to registered land under the Registered Land Act.
- 3 Whether the Tribunal erred by hearing the matter de novo instead of as an appeal.
Ratio Decidendi
The court found that the appeal was filed one year after the decision of the Appeals Committee, well outside the statutory sixty-day period prescribed by section 8(a) of the repealed Land Disputes Tribunal Act. The appellants did not seek or obtain leave of the court to file the appeal out of time. The court rejected the appellants' explanation regarding the timing of the decision and the death of the appellant's father, finding it factually unsupported. As a result, the court held that the appeal was incompetent for being filed out of time without leave and struck it out with costs. The court did not proceed to determine the substantive jurisdictional issues raised regarding the Land...
Court Disposition
appeal struck out with costs
Orders
- The appeal is struck out for being filed out of time without leave of the court.
- The appellants shall pay the costs of the appeal to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT OF KENYA
AT MALINDI
CIVIL APPEAL NO. 48 OF 2010
MPENZWE NGOBA MTANA
BIJUMA NGOBA MTANA(suing as the administrator/Legal representative of the estate of the lateDON MAURICE MUTANA)................................................................................................................................................................APPELLANTS
=VERSUS=
ZUHURA SHABANA............................................................................................................................................RESPONDENT
J U D G M E N T
Introduction
What is before me is an appeal from the Judgment of the Provincial Land Appeals Tribunal at Mombasa in Land Appeal Number 373 of 2005. The Provincial Land Appeal Committee was mandated to deal with appeals from the District Lands Disputes Tribunals which were established pursuant to the repealed Land Disputes Tribunal Act, Cap 303 A.
According to the Memorandum of Appeal, the Tribunal failed to satisfy itself whether it had jurisdiction and proceeded to adjudicate upon the dispute without jurisdiction; that the Tribunal erred in law by failing to make a finding that the Bahari Land Disputes Tribunal lacked jurisdiction to deal with the dispute that was before it and that the Tribunal did not hear the appeal before it but proceeded to hear the matter de novo.
The Appellant's case:
The Appellant's counsel filed his written submissions on 17th December 2013. According to counsel, the dispute in issue in this matter revolved around the ownership of Tezo/Roka/977 (the suit property). Counsel submitted that the Tribunal and the Appeals Committee lacked the jurisdiction to entertain the dispute before them and that the decision by the two bodies was a nullity.
The Appellant's counsel submitted that the suit property having been registered under the repealed Registered Land Act, the only avenue that was available to the Defendant was an action in the High Court or the Magistrate's Court as provided in section 159 and not before the Tribunal. Counsel relied on a number of authorities to buttress his argument which included Dominic Wamuyu Kihu Vs Johana Nduna Civil Appeal No.269 of 2007 and my decision in Fauzia Tariz Zubedi Vs Athman Awadh & Others, Malindi Petition No. 6 of 2011.
The Respondent's Submissions
The Respondent’s advocate has submitted that this appeal was filed on 27th September 2010, which was over one year since the Ruling of the Land Appeal number 373 of 2005 was delivered; that the Appellant did not seek the leave of the court to file the appeal out of time and that the same should be dismissed with costs. Counsel relied on the Court of Appeal decision in Civil Appeal Number 228 of 2010, Alice Wambui Karanja Vs Jacinta Wairimu Njoroge.
On the issue of jurisdiction, counsel submitted that the Appellant should have raised the issue of jurisdiction at the earliest opportunity to enable the court to deal with the same and not at this stage.
Analysis and findings:
Before considering the legal issues in the Appeal, I have to determine whether this appeal was filed within time.
Section 8(a) of the repealed Land Disputes Tribunal Cap 303 A provided that either party to the appeal may appeal from the decision of the Appeals Committee to the High Court on a point of law within sixty days from the date of the decision complained of provided that no appeal shall be admitted to hearing by the High Court unless the judge of that court has certified that an issue of law is involved.
The decision of the Land Appeals Committee was delivered on 21st September 2009 by the Chairman and two other members. The said decision is handwritten. The Appellant had the said handwritten decision certified as a true copy of the original on 21st September 2010.
The Memorandum of Appeal in respect to the decision of the Appeals Committee was filed in this court on 27th September 2010, one year after the decision of the Appeals Committee without the leave of the court. It is not true, as submitted by the Appellant’s advocate that the Appeals Committee heard the appeal on 20th May 2010 and delivered its decision on 21st September 2010 and that while the Appellant was waiting for the decision, he died on 23rd August, 2010.
Even if the Appellants' father died before the Appeals Committee delivered its decision, which is not true, it was incumbent on the Appellants to seek the leave of the court to file the Appeal out of time.
In view of the fact that the appeal herein was filed out of time without the leave of the court, I shall, which I hereby do, strike out the appeal with costs.
Dated and delivered in Malindi this 28th Day of March, 2014
O. A. Angote
Judge