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ELCPartially AllowedMiscellaneous Application dated 3rd October 2013 (arising from Land Appeal Case No. 24 of 2009)· [2014] KEELC 443 (KLR)

Anthony Kombe Dhuri v Kenneth Joseph Nyule [2014] KEELC 443 (KLR)

Environment and Land Court
21 March 2014
671 words in judgment
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The bottom line

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Kenya's Environment and Land Court took over a stalled land appeal from a defunct tribunal and froze all activity on the disputed land until the appeal is decided.

What this practically means

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Executive summary

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This was a ruling on the Applicant's notice of motion dated 3rd October 2013 in the Environment and Land Court at Malindi. The Applicant sought three orders: transfer of Land Appeal Case No. 24 of 2009 pending before the defunct Provincial Land Appeals Committee at Mombasa to the court; stay of execution of the judgment and decree in Kaloleni Principal Magistrate's Court Land Award Case No. 19 of 2009 and of the decision of the Kaloleni Land Disputes Tribunal Case No. LND/KAI/41/2006 delivered on 18th March 2009; and a temporary injunction restraining the Respondent from selling, leasing, transferring, constructing on or cultivating an unregistered 0.75-hectare portion of land at Hademu, Kaloleni, Kilifi County. The Applicant deponed that he had filed his appeal within 30 days of the Tribunal's decision and that the Respondent was showing people the suit property with intent to sell portions. The Respondent opposed, alleging laches, denying the Applicant's possession and describing the appeal as a sham with no chances of success. The court noted the Committee's letter of 8th April 2009 acknowledging registration of the appeal and directing maintenance of status quo. Holding that upon repeal of the Land Disputes Tribunal Act, Cap 303A, pending appeals were to be forwarded to the court by operation of law, the court allowed the application: it transferred the appeal to itself and ordered both parties to maintain status quo with no interference with the disputed land until the appeal was determined. No costs order was recorded. Judgment delivered on 21st March 2014 by O. A. Angote, Judge.

Key legal issues

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01

Transfer of appeals pending before the defunct Provincial Land Appeals Committee

Holding

The appeal registered as Land Appeal Case No. 24 of 2009 was properly transferable to the Environment and Land Court following the repeal of the Land Disputes Tribunal Act, Cap 303A.

Reasoning

The Applicant annexed a letter dated 8th April 2009 from the Provincial Land Appeals Committee confirming receipt and registration of his appeal as case number 24 of 2009. The court held that upon repeal of the Land Disputes Tribunal Act, Cap 303A, pending appeals were to be forwarded to the court by operation of law, and the court could do no more than adopt the interim orders previously made by the Committee.

p. 2
02

Preservation of the suit property pending determination of the transferred appeal

Holding

The interim orders of the defunct Appeals Committee directing maintenance of status quo were adopted, binding both parties against any interference with the disputed land.

Reasoning

The Appeals Committee's letter of 8th April 2009 had already directed the parties to maintain the status quo and not to interfere with the disputed land until the appeal was determined. Since the appeal was transferred to the court by operation of law, the court adopted those interim orders rather than granting the stay and injunction in the specific terms sought by the Applicant.

p. 2

Legal principles established

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  • Upon the repeal of the Land Disputes Tribunal Act, Cap 303A, all pending appeals before the Land Appeals Committees were to be forwarded to the Environment and Land Court for hearing and disposal
  • A court to which defunct tribunal appeals are transferred can adopt the interim orders previously made by the tribunal body

Court orders

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  1. 1.The Land Appeal case number 24 of 2009, Antony Kombe Dhuri-vs-Kenneth Joseph Nyule pending before the defunct Provincial Land Appeals Committee at Mombasa be transferred to this court
  2. 2.Both parties to maintain status quo and that there should be no interference on the disputed land whatsoever until the appeal is determined by the court

Authorities

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Legislation

  • Land Disputes Tribunal ActCap 303A
Jurisdiction invoked
Repeal of the Land Disputes Tribunal Act, Cap 303A - pending appeals before the defunct Land Appeals Committee transferred to the Environment and Land Court by operation of law

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, "Anthony Kombe Dhuri v Kenneth Joseph Nyule [2014] KEELC 443 (KLR)", Case Analysis (2014). Miscellaneous Application dated 3rd October 2013 (arising from Land Appeal Case No. 24 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/443/eng@2014-03-21

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