[2009] KEHC 70 (KLR)
The court held that the appeal was not provided for as of right under the Land Disputes Tribunal Act and, therefore, leave of the magistrate's court was mandatory before filing the appeal. Since the appellants did not obtain such leave, the appeal was not properly before the court. The court relied on both statutory...
Source-derived case information.
- Citation
- [2009] KEHC 70 (KLR)
- Parties
- Appellant: Rasoa Nabifwo Wataka; Appellant: Tebula Mukoya Buranda; Respondent: Peter Wamalwa Kiberenge
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 58 of 2007
- Procedural Posture
- Civil Appeal / Preliminary Objection Ruling
- Outcome
- appeal_struck_out
- Judges
- FN Muchemi
- Legal Topics
- Leave to Appeal, Appeals From Magistrate, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rasoa Nabifwo Wataka
Appellant
Tebula Mukoya Buranda
Appellant
Peter Wamalwa Kiberenge
Respondent
Procedural Posture
Civil Appeal / Preliminary Objection Ruling
Legal Issues
- 1 Whether leave to appeal was required before filing the appeal against the magistrate's adoption of the tribunal award.
- 2 Whether the appeal is properly before the court without such leave.
Ratio Decidendi
The court held that the appeal was not provided for as of right under the Land Disputes Tribunal Act and, therefore, leave of the magistrate's court was mandatory before filing the appeal. Since the appellants did not obtain such leave, the appeal was not properly before the court. The court relied on both statutory provisions and a previous High Court ruling on the same issue to uphold the preliminary objection and strike out the appeal.
Court Disposition
appeal_struck_out
Orders
- The preliminary objection is upheld.
- The appeal is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Appeal 58 of 2007
RASOA NABIFWO WATAKA....................................................1ST APPELLANT
TEBULA MUKOYA BURANDA....................................................2ND APPELLANT
~VRS~
PETER WAMALWA
KIBERENGE.................................................................................RESPONDENT
RULING
This is a ruling on a preliminary objection dated 17th March 2008 raised by the Respondent’s Advocate, Mrs Mumalasi against the hearing of this appeal.The objection is based on the fact that leave for filing this appeal was not sought.The appeal is against the adoption of the award by the magistrate but not in respect of the legality of the decision of Provincial Appeals Board.The counsel urges this court to strike out the appeal for contravening section 75 (1) of the Civil Procedure Act.
Mr. Situma for the Appellant opposed the objection on grounds that no leave of the court to appeal was required.The Appellant appeals against the orders of the magistrate on adoption of the award as judgment.He submitted that there is an automatic right to appeal against the magistrate’s judgment and the issue of leave to appeal does not apply.
I have addressed myself on the issues raised and the responses herein.The Appellant appeals against the ruling of the magistrate in adopting the award of the tribunal as judgment.This is an appeal that is not provided for under the Land Disputes Tribunal Act.It does not lie as a matter of right.The Appellant ought to have sought the leave of the magistrate court to appeal against the said ruling.It is not disputed that no leave was obtained.On perusal ofthe court record, I note that my sister Justice W. Karanja ruled on the same issues in her ruling delivered onthe 10th August 2008. I agree with that ruling that the appeal does not lie as a matter of right and that leave to appeal was mandatory.The appeal herein was filed without such leave and it is therefore not properly before the court.
For these reasons, I uphold the preliminary objection and strike out this appealwith costs to the Respondent.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma
This 11TH day of November 2009 in the presence of
Mr. Kakoi for Situma for appellants and Mr. Kraido for Mumalasi for respondents.