[2007] KEHC 1670 (KLR)
The court found that the Appeals Committee misdirected itself in holding that the matter was res judicata. The previous suit had been dismissed for want of jurisdiction and thus could not form the basis for res judicata. The dispute, involving boundary and trespass issues, was within the jurisdiction of the Land...
Source-derived case information.
- Citation
- [2007] KEHC 1670 (KLR)
- Parties
- Appellant: Muruga Mwatha; Respondent: Nicholus Wambu Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Res Judicata, Land Disputes Tribunal Jurisdiction, Boundary Disputes, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muruga Mwatha
Appellant
Nicholus Wambu Mwangi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Appeals Committee erred in refusing to hear the appeal on grounds of res judicata.
- 2 Whether the adoption of proceedings from a suit dismissed for want of jurisdiction was proper.
- 3 Whether the dispute was within the jurisdiction of the Land Disputes Tribunal.
Ratio Decidendi
The court found that the Appeals Committee misdirected itself in holding that the matter was res judicata. The previous suit had been dismissed for want of jurisdiction and thus could not form the basis for res judicata. The dispute, involving boundary and trespass issues, was within the jurisdiction of the Land Disputes Tribunal as provided by statute. The parties had not exhausted the available appellate procedures under the Land Disputes Tribunal Act. Therefore, the Appeals Committee's refusal to hear the appeal was without basis, and the appeal was allowed with costs to the respondent.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs to the respondent.
- The finding of res judicata by the Appeals Committee is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 12 OF 2003
MURUGA MWATHA……………………………………..APPELLANT
VERSUS
NICHOLUS WAMBU MWANGI………………….….RESPONDENT
JUDGMENT ON APPEAL
This appeal arises out of an award of Central Province Land Disputes Appeals Committee in their Case No.10 of 2002 filed in Kerugoya P.M’s Land Disputes Tribunal Case No.18 of 2002 on 19/2/2003.
The grounds are three in number: -
First of which is that the Appeals Committee erred when it refused to hear the appeal before it arising out of an award filed by Gichugu Division Land Disputes Tribunal.
Secondly that it erred in adopting the proceedings in Embu PMCC No. 89 of 1980 which suit had been dismissed for want of jurisdiction.
Thirdly the committee erred in holding that the Appeal before it was res judicata.
A perusal of the record shows that Provincial Land Disputes Appeal Committee dismissed the appeal saying that it was res judicata having been arbitrated by a panel of elders agreed upon by the parties at Gichugu and the ruling made in the Magistrate’s Court at Embu Civil Case No. 89/80.
On 21/12/2001 the Senior Principal Magistrate’s Court at Embu decided to dismiss the suit for lack of jurisdiction on the ground that it was a claim of trespass. That suit was between Muruga Mwatha and Ndingo Ndambuki. The two parties began there was a hearing in Gichugu Division Land Disputes Tribunal in 2002. There was a complaint about boundary between Nicholus Wambu Mwangi and Mugo Mbura. This dispute was resolved by Land Registrar. The dispute therefore being a dispute on the issue of boundary and trespass was properly within the jurisdiction of the Land Disputes Tribunal at Gichugu Division. As part of evidence offered to Gichugu Tribunal a report of Land Registrar was received by the Tribunal. The issue of determination is also provided for under the provisions of Registered Land Act Cap 300 laws of Kenya. The arbitration award was made that the surveyor do revisit to measure 4. 97 acres as original measurements. This award was forwarded to Principal Magistrate Courtat Kerugoya on 15/4/2002. That award was read as between appellant and Respondent in this appeal. The appeal to Appeals Committee was between Muruga Mwatha and Nicholus Wambu Mwangi when the Appeals Committee found that matter was res judicata and therefore the appeal was not heard.
As I have stated above the dispute was within the jurisdiction of the Provincial Disputes Appeal Committee. The right of Appeal is granted under Land Disputes Tribunal Act 18/90. The Appeals Committee misdirected itself in making a finding of Res judicata. The parties had not exhausted the available procedure. The finding made by Committee was not with any basis. The appeal is allowed with costs to Respondent.
It is so ordered.
Dated this 14th December, 2007.
J. N. KHAMINWA
JUDGE
14/12/2007
Khaminwa – Judge
Njue – Clerk
M/s Thungu HB for Wairimu
Mr. Mutahi HB
Read in open court.
J. N. KHAMINWA
JUDGE