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Court of AppealPartially AllowedCivil Appeal No. 71 of 2016· [2017] KECA 260 (KLR)

Christopher Wafula Mutoro v Richard Lordia Lokere [2017] KECA 260 (KLR)

Court of Appeal of Kenya
5 October 2017
1,456 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that land appeals pending before abolished Land Disputes Appeal Committees must now be heard by the Environment and Land Court, not magistrates' courts.

What this practically means

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Executive summary

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This appeal arose from a ruling of the Environment and Land Court at Kitale (Obaga J) dismissing the appellant's application for review of an earlier order transferring his appeal, being Provincial Land Disputes Appeal No. 26 of 2011, to the Chief Magistrate's Court at Kitale. The appellant's dispute originated in a Kwanza Land Disputes Tribunal award over land parcel Kwanza/Kwanza Block 3/Luhya/52, adopted as a judgment of the Chief Magistrate's Court in April 2011. His appeal to the Rift Valley Provincial Land Disputes Appeal Committee was pending when the Land Disputes Tribunal Act was repealed by the Environment and Land Court Act with effect from 30th August 2011, abolishing the tribunals and appeal committees. The Court of Appeal held that jurisdiction is conferred by the Constitution or statute; under Article 162(2)(b) and Section 13(1) of the ELC Act, the ELC has original and appellate jurisdiction over all land disputes, and with the appeal committee defunct, the ELC alone could hear the pending appeal. Section 30(1) of the ELC Act was a transitional provision that expired once the ELC became operational, and the Chief Justice's Practice Directions No. 7 did not cover an appeal pending before the Provincial Appeals Committee. Section 23(3) of the Interpretation and General Provisions Act preserved the appellant's accrued right of appeal. The appeal was allowed, the ELC ruling set aside, the appellant's application allowed, and the appeal ordered to be registered, heard and determined by the ELC Kitale, with no order as to costs since the error was the court's own.

Key legal issues

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01

Jurisdiction of the ELC over appeals pending before abolished Land Disputes Appeal Committees

Holding

The ELC has jurisdiction to hear and determine appeals that were pending before the Provincial Land Disputes Appeal Committee, since the Constitution and the ELC Act confer on it original and appellate jurisdiction over land disputes and the committee no longer exists.

Reasoning

Jurisdiction is conferred by the Constitution or statute. Article 162(2)(b) mandated Parliament to establish a superior court for land disputes, and Section 13(1) of the ELC Act gives the ELC original and appellate jurisdiction over all land disputes. The ELC Act repealed the Land Disputes Tribunal Act, abolishing the appeal committees. With the appeal committee gone, the only competent court with statutory jurisdiction over the pending appeal is the ELC, not the Magistrate's Court.

p. 3
02

Expiry of transitional provisions and Practice Directions

Holding

Section 30(1) of the ELC Act is a transitional provision that operated only until the ELC came into operation; by the time of the appellant's application, the ELC was operational and the transitional provisions, including the Chief Justice's Practice Directions, had expired.

Reasoning

Section 30(1) expressly operates until the ELC comes into operation. The Act commenced on 30th August 2011, ELC judges were appointed on 1st October 2012, and a judge was posted to Kitale in November 2012. Accordingly, by July 2015 the transitional regime had lapsed and the ELC was seized of jurisdiction over the pending appeal.

p. 3
03

Scope of Practice Directions No. 7

Holding

Practice Directions No. 7 did not apply to the appellant's appeal, which was before the Provincial Appeals Committee and had not been transferred to a Magistrate's Court.

Reasoning

The direction referred only to proceedings pending before a Magistrate's Court that had been transferred from defunct District Land Disputes Tribunals. The appellant's appeal was at the Provincial Appeals Committee stage and had never been transferred to the Magistrate's Court, so the direction did not cover it.

p. 3
04

Effect of repeal on accrued rights of appeal

Holding

By virtue of Section 23(3) of the Interpretation and General Provisions Act, the repeal of the Land Disputes Tribunal Act preserved the appellant's accrued right of appeal, which he could pursue before a competent court.

Reasoning

Section 23(3) provides that repeal does not affect previous operations or rights accrued under the repealed statute unless a contrary intention appears. The ELC Act conveys no such contrary intention, so the appellant's accrued right of appeal survived and had to be accommodated in a competent forum.

p. 3
05

Review of the ELC's earlier ruling

Holding

The ELC erred in law in declining jurisdiction and should have reviewed its earlier ruling on the ground of apparent error of law on the face of the record.

Reasoning

Having found that the ELC possessed jurisdiction over the pending appeal and that the earlier transfer order rested on a misreading of the Practice Directions and transitional provisions, the Court of Appeal held the refusal of review was an error of law apparent on the face of the record.

p. 3

Legal principles established

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  • Where the forum before which a land dispute appeal is pending (the Land Disputes Appeal Committee) has been abolished by repeal of the Land Disputes Tribunal Act, the Environment and Land Court has jurisdiction to hear and determine that appeal.
  • The transitional provisions in Section 30(1) of the ELC Act, including the Chief Justice's Practice Directions made thereunder, expired once the ELC became operational, after which the ELC has jurisdiction over pending land disputes appeals.
  • Practice Directions No. 7 does not encompass a pending appeal before the Provincial Land Disputes Appeals Committee; it applies only to proceedings already transferred from defunct District Land Disputes Tribunals to a Magistrate's Court.
  • Under Section 23(3) of the Interpretation and General Provisions Act, repeal of the Land Disputes Tribunal Act did not extinguish accrued rights of appeal under the repealed Act, which may be pursued before a competent court.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the ELC Court appealed from is set aside
  3. 3.The application of the appellant dated 15th July, 2015 is allowed
  4. 4.The Provincial Land Disputes Appeal Cause No. 26 of 2011 shall be registered, heard and determined by the ELC Kitale
  5. 5.No orders as to the costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court Act, No. 19 of 2011Section 13(1)
  • Environment and Land Court Act, No. 19 of 2011Section 30(1)
  • Environment and Land Court Act, No. 19 of 2011Section 31
  • Land Disputes Tribunal Act, No. 18 of 1990Section 3(1)
  • Interpretation and General Provisions ActSection 23(3)
On appeal from
High Court of Kenya, Environment and Land Court at Kitale
E & L Misc. Appl. No. 43 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13(1) of the Environment and Land Court Act

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, "Christopher Wafula Mutoro v Richard Lordia Lokere [2017] KECA 260 (KLR)", Case Analysis (2017). Civil Appeal No. 71 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/260/eng@2017-10-05

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