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ELCAllowedNot stated in judgment· [2015] KEELC 20 (KLR)

James Bett Chelanga & another v Patrick Maiyo [2015] KEELC 20 (KLR)

Environment and Land Court
1 October 2015
AOANTONY OMBWAYO
1,180 words in judgment
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The bottom line

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Kenya's Environment and Land Court took over an appeal stuck before a defunct land tribunal committee, so old tribunal appeals can still be heard.

What this practically means

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Executive summary

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This was an application dated 23 January 2014 by James Bett Chelanga and Ben Suter seeking directions for the transfer to the Environment and Land Court of Nakuru Provincial Land Disputes Tribunal Appeal No. 20 of 2010, an appeal which was part-heard before the defunct Provincial Appeals' Committee against an award of the Tirap land elders' dispute tribunal over parcel Kipkonyos B, adopted by the Iten Principal Magistrate on 9 December 2009. The applicants, who had secured injunctive orders pending the appeal, argued that following the repeal of the Land Disputes Tribunal Act (No. 18 of 1990) all matters touching on ownership, occupation and title to land fall to be heard by the Environment and Land Court, and that no party would suffer prejudice from the transfer. The respondents, through Mr. Cheptarus, opposed the application but relied on rules 1, 13 and 40 of the practice directions on proceedings in the Environment and Land Courts. Antony Ombwayo J framed the sole issue as whether an appeal pending before the Provincial Appeals' Committee could be transferred to the court for determination. Applying Direction No. 13 of the practice directions, read liberally and informed by the overriding objective, the court held that because a tribunal's decision is subsumed in the Magistrate's Court decree, appeals pending before the defunct Appeals' Committees must be handled by the Environment and Land Court. The court directed the transfer of the appeal for hearing and determination.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to receive an appeal that was part-heard before the defunct Provincial Appeals' Committee established under the repealed Land Disputes Tribunal Act.

Holding

The court held that Direction No. 13 of the practice directions confers jurisdiction to hear appeals from Magistrates' Courts and tribunals, and that a liberal interpretation requires pending appeals from tribunal awards adopted by Magistrates' Courts to be handled by the Environment and Land Court.

Reasoning

The court traced the practice directions to the Chief Justice's powers under the Sixth Schedule, Article 161(2)(a) of the Constitution, the ELC Act and the Judicial Service Act. Direction No. 13 gives the ELC jurisdiction over appeals from the Magistrates' Court and tribunals. Because a tribunal's decision is subsumed in the Magistrate's Court decree, pending appeals in the defunct Appeals' Committees fall to the ELC, and the overriding objective cures any ambiguity.

p. 3

Legal principles established

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  • The decision of a Land Disputes Tribunal is subsumed in the decree of the Magistrate's Court, so appeals from tribunal awards adopted by the Magistrate's Court, including appeals pending in defunct Appeals' Committees, fall within the jurisdiction of the Environment and Land Court.
  • Ambiguity in the practice directions is cured by the overriding objective.

Court orders

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  1. 1.The pending Nakuru Provincial Appeals' Committee land case No. 20 of 2010 between James Bett Chelanga and Ben Suter and Patrick Maiyo and Joseph Chebii be transferred to the Environment and Land Court for hearing and determination

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 161(2)(a); Article 159; Sixth Schedule Part 5 Section 22
  • Land Disputes Tribunal ActNo. 18 of 1990 (repealed)
  • Environment and Land Court ActSections 24, 30(1)(2), 31; No. 19 of 2011
  • Judicial Service ActSection 5(1) and (2)(c); No. 1 of 2011
  • Civil Procedure ActSections 1A and 1B
  • Practice Directions on Proceedings in the Environment and Land Courts and proceedings relating to the environment, and the use and occupation of, and title to landDirections 1 and 13; rules 1, 13 and 40
Jurisdiction invoked
Sixth Schedule Part 5 Section 22 and Article 161(2)(a) of the Constitution of Kenya 2010; Environment and Land Court Act (No. 19 of 2011); Judicial Service Act (No. 1 of 2011)

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 Bett Chelanga & another v Patrick Maiyo [2015] KEELC 20 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/20/eng@2015-10-01

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