[2003] KEHC 13 (KLR)
The High Court found that the appellant was given adequate opportunity to present his case before the elders, including the ability to select two elders to the arbitration panel. The trial magistrate properly recorded the elders' award and did not err in dismissing the appellant's objections. Furthermore, the court...
Source-derived case information.
- Citation
- [2003] KEHC 13 (KLR)
- Parties
- Appellant: Nicolas Muriithi; Respondent: Margaret Ruguru; Respondent: Lincoln Nyaga; Respondent: Fredrick Mugo; Respondent: Esther Muthoni; Respondent: Patrick Njue
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Arbitration Awards, Land Disputes, Jurisdiction of Magistrates, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicolas Muriithi
Appellant
Margaret Ruguru
Respondent
Lincoln Nyaga
Respondent
Fredrick Mugo
Respondent
Esther Muthoni
Respondent
Patrick Njue
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the appellant's objections to the elders' award.
- 2 Whether the appellant was given adequate opportunity to present his case before the elders.
- 3 Whether the magistrate had jurisdiction to determine the dispute under Act 18/1990.
Ratio Decidendi
The High Court found that the appellant was given adequate opportunity to present his case before the elders, including the ability to select two elders to the arbitration panel. The trial magistrate properly recorded the elders' award and did not err in dismissing the appellant's objections. Furthermore, the court held that under Act 18/1990, the magistrate's court lacked jurisdiction to entertain objections to the elders' award, as such objections should have been filed with the Appeal Committee established under the Act. The appeal was therefore incompetent and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 6 of 1998
NICOLAS MURIITHI…….………………………....………….APPELLANT
VERSUS
MARGARET RUGURU………………………………..1ST RESPONDENT
LINCOLN NYAGA…………………..………………….2ND RESPONDENT
FREDRICK MUGO…….……………………………….3RD RESPONDENT
ESTHER MUTHONI…………………..………………..4TH RESPONDENT
PATRICK NJUE………………………………………..5TH RESPONDENT
JUDGMENT
This is an appeal against the ruling dated 9/4/1997 in Resident Magistrate Civil Case No. 68 of 1996 at Embu Resident Magistrate’s Court.
The grounds of appeal are state:
The first ground is that the appellant wanted to divide his land according to his wish.
Secondly that the Trial magistrate failed to see that the land was registered in the appellants name.
Thirdly that the Trial Magistrate erred in dismissing the objections raised by the Appellant and lastly the Trial Magistrate erred in failing to consider the Act that a person cannot be forced to distribute his estate against his wishes.
The dispute arises from elder’s award which was read to the parties on 20/12/1996 and parties given 30 days within which to file objections. The objection was filed by Defendant and ruling was given on 9/4/1997. The ruling was with regard to application dated 17/1/1997 where the Appellant sought to set aside the award of elders and that the case be heard de novo. The grounds which were relied upon by the Appellant was one. “that the arbitration did not give me enough time to express my views” The court has perused that ruling. The Trial Magistrate considered the issue and made a finding that the Appellant was given sufficient time to present his views before elders. He had even chosen two elders to form the panel of arbitrators. The court has perused the record and finds that the Appellant was given adequate opportunity to defend himself. The grounds of appeal set out do not arise out of the ruling or the arguments of parties. The duty of the Trial Magistrate was to record the award of arbitration which he did. There was no appeal against the decision of the elders. It was not for Trial Magistrate to bring the case.
The provisions under Act 18/1990 removes the jurisdiction of Magistrate in disputes relating to land and although the Trial Magistrate did not expressly invoke the provisions of that Act, the objections should have been filed by way of appeal to the Appeal Committee established under that Act.
Nevertheless the Trial Magistrate finding on the application was correct and backend by the record. This appeal is therefore incompetent and same is dismissed.
Dated this 23rd April, 2008.
J. N. KHAMINWA
JUDGE
23/4/2008
Khaminwa – Judge
Njue – Clerk
Mr. Mogusu Respondent
Mr. Kiama HB for Kibicho
Read in open court.
J. N. KHAMINWA
JUDGE