[2014] KEHC 5642 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL APPEAL NO. 33 OF 2003

MWANIKI KARABA...............................................APPELLANT

VERSUS

MWAI KARABA.................................................RESPONDENT

JUDGMENT

This Judgment is the outcome of the appeal by MWANIKI KARABA, the Appellant, against the decision of the Central Province Land Disputes Appeals Committee delivered on 23rd January, 2003. The history behind this appeal begun when MWAI KARABA, the Respondent herein, filed a complaint before the Kerugoya Central Division Land Disputes Tribunal against his brother Mwaniki Karaba, appellant (now deceased) claiming to be entitled to two and half acres (2 ½) to be excised from L.R.no.Inoi/Thaita/437. The Respondent alleged that the land had been initially registered in the name of Mwaniki Karaba to hold the same in trust for himself and the Respondent. The Land Disputes Tribunal heard the dispute and in the end made an award which was to the effect that Mwaniki Karaba, the Appellant was ordered to surrender two acres (2) to Mwai Karaba, the Respondent. The Appellant was aggrieved by that decision hence he was prompted to prefer an appeal to the Central Province Land Disputes Appeals Committee. Both parties appeared and were heard by the Land Disputes Appeals Committee and by its decision delivered on 22nd January 2003, the decision of the Land Disputes Tribunal was confirmed. In short, the Provincial Land Disputes Committee made an award stating that the Respondent is entitled to two acres (2) which the appellant was to retain three acres of the parcel of land known as L.R.no.Inoi/Thaita/437. Again, the appellant was dissatisfied hence this appeal.

On appeal, the appellant put forward the following grounds in his amended Memorandum of Appeal:

The Provincial Land Dispute Appeals Tribunal and the District Land Dispute Tribunal erred in law by proceeding to determine a trust when they had no jurisdiction to entertain such a claim.

The Provincial Land Dispute Appeal Tribunal erred in law when it failed to consider that the appellant was the absolute registered proprietor of land parcel no.Inoi/Thaita/437 with all the rights of a proprietor under cap 300 laws of Kenya.

The Provincial Land Dispute Tribunal erred in law in failing to give reason for its award as provided for by law and failure to do so a miscarriage of justice was occasioned.

When the appeal came up for hearing, learned counsels appearing in the matter recorded a consent order to have the appeal disposed of by written submissions.

I have carefully examined the recorded proceedings before the Kerugoya Central Division Land Disputes Tribunal and those of the Central Province Land Disputes Appeals Committee. I have also considered the rival written submissions. Mr. Njage, learned advocate for the Respondent, has in his submissions raised four preliminary points of law against the appeal which I think should be determined first before delving deeper into the substance of the appeal. The first issue argued by the Respondent is that the appeal abated on 28th July 2006. The Respondent pointed out that Mwaniki Karaba who filed the appeal passed away on 22nd May 2006 and that the legal representatives have never sought to be substituted in this appeal. The appellant is of the view that the appeal has not abated since Edith Waruguru Mwaniki, the deceased's legal representative successfully applied to substitute the deceased on 18th September 2007. I have considered the competing arguments and it is clear to me that the deceased died on 28th July, 2005 and not on 22nd May, 2006 as alluded by the Respondent. The application for substitution was filed on 27th July 2006. With respect, I agree with the Appellant that the appeal has not abated, consequently, the preliminary point is rejected.

The second preliminary point raised is to the effect that there was no competent certificate issued by a judge that the appeal raises points of law as required under Section 8(9) of the Land Disputes Tribunals Act no.18 of 1990. It is argued that the amended certificate is not signed and sealed by the Deputy Registrar hence it is not the certificate contemplated under Section 8 (9)of the aforesaidAact. The appellant beseeched this court to reject the preliminary objection on the ground that the same is merely technical and lacks merit. The appellant was of the view that it is a must for the certificate contemplated under Section 8 (9) to be part of the Record of Appeal. I have looked at the record and it is apparent from the record that on 4/11/2003 Mr. Justice (rtd) Khamoni's order satisfied the requirement of the proviso to Section 8 (9) of the Land Disputes Tribunals Act. To rule otherwise will make this court decide the issue technically thus breaching Article 159(1)(d) of the Constitution which enjoins courts not to administer justice on the basis of procedural technicalities. The objection is overruled.

The third preliminary point raised by the Respondent is that the essential documents to wit statement of the claim, statement of the answer and the form of appeal were not included in the record of appeal. It is argued that the withholding of these documents meant that the appeal is incompetent. The appellant's response to the above issue is that the appellant had sought directions and the Respondent did not deem it fit to raise any objection, hence he is estopped from raising such objections at this late stage. I have considered the rival submissions and it is important to look at the relevant provisions of the Civil Procedure Rules governing appeals i.e Order 42 rule 13(4). It is clearly stated that before allowing an appeal to proceed for hearing, the Presiding Judge shall be satisfied that the following documents are on court record:

Memorandum of appeal.

Pleadings.

Trial court's notes.

Transcripts of any official shorthand e.t.c.

Affidavits, maps and other relevant documents.

Judgment, order or decree appealed from.

The Judge, however, is given the discretion to dispense with the production of any document which is not relevant save for (i), (ii) and (f) above.

The issues raised by the Respondent are issues which essentially should be raised at the stage when the appeal comes up for directions before the judge hearing the appeal. The summons dated 29th March 2010 being an application for directions came up for inter-parties hearing on 28th May, 2010 and representations were made to court that there was no objection to the application. The Respondent therefore, waived that right to raise the issue after directions were given fixing the appeal for hearing. I have looked at the material placed before this court and I am satisfied that the same is sufficient to show this court the case that was before the land disputes tribunal and that which was before the Provincial Land Appeals Committee. I find no merit in the objection.

The final Preliminary Objection is to the effect that the Memorandum of Appeal is incompetent because the description of the appeals tribunal was in doubt. It is argued that the appellant got himself mixed-up yet the actual body to appeal to from the decision of the Land Disputes Tribunal is the Land Disputes Appeals committee pursuant to Section 9of the Land Disputes Tribunal Act. The appellant conceded that he made a bonafide mistake by getting mixed-up. In my view, the defect is not fatal. The same in curable under Section 1B of the Civil Procedure Act and Article 159 of the Constitution. The objection is over the format. For the broad interest of justice I will overlook the defect.

Having disposed of the preliminary points of law let me now consider the merits or otherwise of the appeal. I have already enumerated the grounds of appeal put forward by the appellant. I think this appeal can be disposed of by the first ground which questions the jurisdiction of the land disputes tribunal and the subsequent appeals committee to hear and determine a dispute based on trust. The appellant is of the view that the tribunal and the appeals committee did not have jurisdiction to do so. The Respondent holds the view that the two bodies had jurisdiction to hear and determine the dispute. What comes out clearly from the pleadings, the proceedings and the submissions is that the dispute before the Land Disputes Tribunal and the Appeals Committee is that of trust. The Respondent had beseeched the Land Disputes Tribunal to find that the land in dispute i.e L.R.Ihoi/Thaita/437 was registered in the name of the Respondent in trust for himself and the appellant. The land disputes tribunal and the appeals committee in the end agreed with the respondent and proceeded to award him two acres to be excised from L.R.no.Ihoi/Thaita/437. Section 3(1) of the Land Disputes Tribunals Act no.18 of 1990 restricted the nature of disputes to be determined by the tribunal to:

Division of or the determination of boundaries to land.

A claim to occupy or work land or

Trespass to land

It is clear to me that the land disputes tribunal was not given jurisdiction to hear and determine claim based on trust. With respect, I agree with the submissions of Mr. Munene Muriuki, learned advocate for the appellant that the land disputes tribunal and the appeals committee acted ultra-vires Section 3(1)of the Land Disputes Tribunal Act. The decision of the two bodies will give rise to the sub-division of L.R.no.Ihoi/Thaita/437 thus interfering with title to land. I do not need to belabour in considering the other grounds of appeal. I think this ground alone is sufficient to dispose of the appeal.

In the end, the appeal is allowed. The decision of the Kerugoya Central Division Land Disputes Tribunal and the Central Province Land Disputes Appeals Committee are set aside. This being a dispute involving brothers I direct that each one of them meets his own costs.

Dated, Signed and delivered in open court this 21st day of February, 2014.

….......................

J.K.SERGON

JUDGE

In the presence of

Mr. Gori h/b for Njagi for Respondent

N/A for Mr. Munene Muriuki for Appellant but with Notice