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Court of AppealPartially AllowedCivil Appeal 153 of 2005· [2010] KECA 50 (KLR)

James Gakono Ngungi v Jane Njoki Ngugi & another [2010] KECA 50 (KLR)

Court of Appeal
19 November 2010
1,056 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled a High Court must give reasons when rejecting an appeal from a land tribunal, and reinstated the landowner's challenge.

What this practically means

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Executive summary

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This Court of Appeal at Nyeri ruling, delivered on 19 November 2010 by a bench of M. ole Keiwua, P.N. Waki and Alnashir Visram, JJA, allowed the appellant's appeal against a terse ruling of the High Court at Embu (Omwitsa, Commissioner of Assize) dated 7 June 2001 which simply stated 'Appeal rejected'. The dispute originated before the Gichugu Land Disputes Tribunal, which awarded the 1st respondent two acres out of land parcel Baragwi/Kariru/128, registered in the appellant's name, on a claim that he held the land in trust. The appellant's appeals to the Provincial Appeals Committee and then to the High Court failed, the latter by summary rejection without any reasons. The Court of Appeal held that under Section 8(9) of the Land Disputes Tribunal Act, an appeal lies to the High Court on a point of law only where a Judge certifies that an issue of law is involved, and that the superior court was obliged to consider and determine that question and issue a certificate if satisfied. The summary order was silent on the provisions invoked, and the court refused to presume the Commissioner had applied Section 8(9), suspecting instead an erroneous invocation of Section 79B of the Civil Procedure Act. Finding the grounds, including the Tribunal's lack of jurisdiction over trusts in registered land, not frivolous, the court allowed the appeal, reinstated the High Court appeal, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Compliance with the certification requirement in Section 8(9) of the Land Disputes Tribunal Act

Holding

The superior court erred in principle by summarily rejecting the appeal without addressing the certification requirement under Section 8(9); the order was silent on the statutory provisions invoked.

Reasoning

Section 8(9) permits an appeal to the High Court on a point of law within sixty days, but only where a Judge certifies that an issue of law (other than customary law) is involved. The court held that the superior court was bound to consider and determine whether an issue of law arose and to certify accordingly if satisfied. Its terse 'Appeal rejected' order disclosed no statutory basis, and the Court of Appeal declined to presume it had applied Section 8(9). The court suspected the Commissioner had instead wrongly applied Section 79B of the Civil Procedure Act. Since the grounds raised arguable issues of law, the appeal was reinstated.

p. 2
02

Tribunal jurisdiction over trust claims in registered land

Holding

Counsel for the appellant argued, and the court accepted as arguable for purposes of reinstatement, that the Tribunal lacked jurisdiction to determine trusts in registered land under Section 3 of the Act.

Reasoning

The appellant contended that the Tribunal's jurisdiction under Section 3 of the Land Disputes Tribunal Act is circumscribed and does not extend to considerations of trust in registered land or to determination of ownership of registered land. The Court of Appeal did not decide this substantive question definitively; it held only that the jurisdictional issue was a weighty issue of law that the appellant was pre-empted from raising because the superior court failed to issue the requisite certificate. The question remains for determination by the High Court on reinstatement.

p. 2

Legal principles established

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  • Where an appeal lies to the High Court from an Appeals Committee only on a point of law and upon certification by a Judge under Section 8(9) of the Land Disputes Tribunal Act, the superior court must consider and determine whether an issue of law is involved and, if satisfied, issue a certificate; it cannot summarily reject the appeal in a terse order that does not disclose the statutory basis of its decision.
  • There is no presumption that a superior court which makes a summary rejection order in such an appeal invoked Section 8(9) of the Land Disputes Tribunal Act and declined to issue the requisite certificate.
  • Section 79B of the Civil Procedure Act, governing intended appeals from subordinate courts, does not govern appeals from Land Disputes Tribunal Appeals Committees to the High Court.

Court orders

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  1. 1.Appeal allowed
  2. 2.The appeal before the High Court (Civil Appeal No. 25 of 1999) reinstated for consideration in accordance with the law
  3. 3.Appellant to have the costs of the appeal
On appeal from
High Court of Kenya at Embu
H.C.C.C. No. 25 of 1999
Jurisdiction invoked
First appellate jurisdiction over the High Court sitting on appeal under Section 8(9) of the Land Disputes Tribunal Act (Act No. 18 of 1990)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Gakono Ngungi v Jane Njoki Ngugi & another [2010] KECA 50 (KLR)", Case Analysis (2010). Civil Appeal 153 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/50/eng@2010-11-19

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