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ELCStruck OutAppeal from Provincial Land Appeals Tribunal Land Appeal Number 373 of 2005

Mpenzwe Ngoba Mtana & another v Zuhura Shabana [2014] KEELC 440 (KLR)

High Court of Kenya
28 March 2014
OAO. A. Angote
719 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The High Court at Malindi (O. A. Angote, J) determined an appeal from the Provincial Land Appeals Committee at Mombasa in Land Appeal Number 373 of 2005, arising from the Bahari Land Disputes Tribunal under the repealed Land Disputes Tribunal Act, Cap 303 A. The Appellant argued that the Tribunal and Appeals Committee lacked jurisdiction over a dispute concerning ownership of registered land, that their decision was a nullity, and that the Committee wrongly heard the matter de novo; counsel relied on section 159 of the repealed Registered Land Act and authorities including Dominic Wamuyu Kihu v Johana Nduna and Fauzia Tariz Zubedi v Athman Awadh. The Respondent countered that the appeal, filed on 27th September 2010, was over a year late without leave, relying on Alice Wambui Karanja v Jacinta Wairimu Njoroge, and that the jurisdiction objection came too late. The court first addressed timeliness. Section 8(a) required an appeal on a point of law within sixty days, certified by a judge. The Committee's decision was delivered on 21st September 2009; the Memorandum of Appeal was filed one year later without leave. The court rejected the Appellant's account that the decision was delivered in 2010 after the death of the original appellant, holding that even then leave to file out of time was required. The court struck out the appeal with costs and did not reach the jurisdictional questions raised.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was filed within the prescribed sixty days from the decision of the Land Appeals Committee
  2. 2.Whether the Tribunal and the Appeals Committee had jurisdiction to entertain the dispute over ownership of the suit property

Key legal issues

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01

Timeliness of the appeal

Holding

The appeal was filed one year after the decision of the Appeals Committee, without leave, and was therefore incompetent.

Reasoning

The decision of the Land Appeals Committee was delivered on 21st September 2009. Section 8(a) of the repealed Land Disputes Tribunal Act required an appeal to the High Court on a point of law within sixty days, certified by a judge. The Memorandum of Appeal was filed on 27th September 2010, a year later, without leave. The court rejected the claim that the decision was delivered in 2010.

p. 2
02

Jurisdiction of the Tribunal and Appeals Committee over registered land

Holding

Not determined, as the appeal was struck out for being filed out of time.

Reasoning

The Appellant argued that the dispute over ownership of Tezo/Roka/977, registered under the repealed Registered Land Act, could only be litigated in the High Court or Magistrate's Court under section 159, and that the Tribunal's decision was a nullity. The court did not reach this issue because the appeal failed on timeliness.

p. 1

Legal principles established

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  • An appeal from a Land Appeals Committee under section 8(a) of the Land Disputes Tribunal Act must be filed within sixty days and certified as raising a point of law; an appeal filed out of time without leave is liable to be struck out.
  • A party relying on supervening events such as death must still seek leave to file an appeal out of time.

Court orders

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  1. 1.Appeal struck out with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

OA
majority

Wrote the judgment

On appeal from
Provincial Land Appeals Tribunal at Mombasa
Land Appeal Number 373 of 2005
Jurisdiction invoked
Section 8(a) of the repealed Land Disputes Tribunal Act, Cap 303 A

Relief refused

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The appeal itself (not admitted; no extension of time sought)

Filed out of time without leave of the court

p. 2

Costs

Appeal struck out with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the fact that the appeal herein was filed out of time without the leave of the court, I shall, which I hereby do, strike out the appeal with costs.
p. 2Final orders - striking out appeal
no appeal shall be admitted to hearing by the High Court unless the judge of that court has certified that an issue of law is involved
p. 2Statutory certification requirement
it was incumbent on the Appellants to seek the leave of the court to file the Appeal out of time
p. 2Extension of time

Issues in the judgment

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material

The judgment does not state the names of the parties; party names are not ascertainable from the text provided.

minor

The judgment refers inconsistently to the date of the Appeals Committee hearing/decision as argued by the Appellant versus the court's finding.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mpenzwe Ngoba Mtana & another v Zuhura Shabana [2014] KEELC 440 (KLR)", Case Analysis (2014). Appeal from Provincial Land Appeals Tribunal Land Appeal Number 373 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/440/eng@2014-03-28

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