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Court of AppealPartially AllowedCivil Appeal No. 20 of 2002· [2008] KECA 224 (KLR)

Njau Kiono v James Maina Kiragu [2008] KECA 224 (KLR)

Court of Appeal
6 June 2008
SBS.E.O. BosireEOE.O. O'KubasuJAJ. Aluoch
3,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out an elders' award filed late without permission, sending the land dispute back to court for a full trial.

What this practically means

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Executive summary

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This appeal arose from a 1983 sale agreement under which the respondent paid Kshs.56,000 in full for four acres out of Plot No. 218 Njabini Scheme and took possession, but the appellant refused to transfer the land. The respondent sued in the Resident Magistrate's Court at Naivasha in November 1991. The magistrate referred the dispute to arbitration before the District Officer and a panel of elders under the Magistrate's Jurisdiction (Amendment) Act 1981, directing that the award be filed within 30 days. The appellant did not attend the arbitration; the elders awarded the land to the respondent. The magistrate dismissed the appellant's application to set aside the award and later confirmed it. The High Court (Shaikh Amin, J.) dismissed the appellant's first appeal on 28th May 1998, also rejecting a plea for retrial and ordering each party to bear its own costs. The Court of Appeal (Bosire, O'Kubasu and Aluoch, JJA) allowed the second appeal on a single ground: the award, required to be filed within 30 days, was read out long after that period with no extension of time, rendering it a nullity. The Court also held the magistrate erred in applying the 1981 Act, which had been superseded by the Land Disputes Tribunals Act No. 18 of 1990. The Court set aside the elders' award, the magistrate's decision, and the High Court's dismissal, remitted the suit for trial before the Resident Magistrate's Court, and awarded the respondent the costs of both appeals because of the appellant's conduct in prolonging the litigation.

Key legal issues

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01

Nullity of an award filed out of the stipulated time

Holding

The elders' award, ordered to be filed within 30 days but read out to the parties well after that period with no extension of time, was a nullity and could not be confirmed.

Reasoning

The referral order of 24th January 1992 expressly required the award to be filed within 30 days. The record was silent until 23rd October 1992 when the award was read, and no application for extension of time was made. Relying on Wasike v Swala, the Court held that a magistrate cannot accept and act on an award filed long after the time fixed for making it; such an award is a nullity.

p. 5
02

Applicable statutory regime for referral of land disputes to tribunals

Holding

The Resident Magistrate erred in referring the 1991 dispute to arbitration under the Magistrate's Jurisdiction (Amendment) Act 1981, which had been amended by Act No. 18 of 1990; the Land Disputes Tribunals Act governed and conferred jurisdiction only over specified categories of land disputes.

Reasoning

The suit was filed on 22nd November 1991, after the Magistrates' Jurisdiction (Amendment) Act 1981 had been amended by Act No. 18 of 1990. The Court set out sections 3(1) and 4 of the Land Disputes Tribunals Act, which confine tribunal jurisdiction to disputes over boundaries, division of land, claims to occupy or work land, and trespass. The magistrate therefore proceeded on a repealed statutory footing.

p. 5
03

Whether the elders had jurisdiction over a claim for specific performance of a contract for sale of land

Holding

The Court did not finally determine this ground, disposing of the appeal solely on the nullity of the award for late filing.

Reasoning

Although counsel for the appellant argued that the elders lacked jurisdiction because the dispute concerned specific performance of a sale contract, the Court elected to decide the appeal on one ground alone - that the award was a nullity for having been filed after the expiry of 30 days. The jurisdictional question under the Land Disputes Tribunals Act was left for the resumed trial.

p. 5

Legal principles established

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  • An arbitration award filed after the expiry of the time fixed for its filing, without an extension of time granted by the court, is a nullity and cannot be accepted or acted upon by the court.

Court orders

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  1. 1.Appeal allowed
  2. 2.Set aside the dismissal of the appeal by the learned Judge of the High Court
  3. 3.Set aside the learned Resident Magistrate's decision confirming the elders' award
  4. 4.Set aside the elders' award
  5. 5.Directed that the Resident Magistrate's Court shall proceed with the trial of the suit
  6. 6.Respondent awarded the costs of this appeal and of the first appeal to the High Court

Authorities

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Legislation

  • Magistrate's Jurisdiction (Amendment) ActSections 9(a), (c)
  • Magistrates' Jurisdiction (Amendment) Act No. 14 of 1981Entire Act (as amended by Act No. 18 of 1990)
  • Land Disputes Tribunals Act No. 18 of 1990Section 3(1)
  • Land Disputes Tribunals Act No. 18 of 1990Section 4(1) and (2)
  • Registered Land ActSection 159(1)

Cases cited (2)

  • Bagwasi Nyangau v Omolosa Nyakwara
    (1982-85) 1 KAR 806
  • Cleophas Wasike v Mucha Swala
    Civ. App. 6 of 1983
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 147 of 1993
Jurisdiction invoked
First appellate appeal from the High Court under the Court of Appeal's appellate jurisdiction (no specific provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njau Kiono v James Maina Kiragu [2008] KECA 224 (KLR)", Case Analysis (2008). Civil Appeal No. 20 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/224/eng@2008-06-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.