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ELCAllowedNotice of Motion dated 29th May, 2015· [2015] KEELC 35 (KLR)

Thomas Muthee & another v Nyaguthii Kaguthu [2015] [2015] KEELC 35 (KLR)

Environment and Land Court
29 October 2015
LWL N Waithaka
2,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can take over appeals stuck before the now-defunct Land Disputes Tribunals when they raise a pure question of law.

What this practically means

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Executive summary

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The applicants had lodged a claim before the Mathira Land Dispute Tribunal concerning a share of land parcel Konyu/Ichuga/699, registered in the name of the respondent. The tribunal found for the registered owner and ordered each party to bear its own costs. The applicants appealed to the Nyeri Provincial Appeals Committee, but before the appeal could be heard, the Land Dispute Tribunals Act was repealed and the tribunals disbanded. The applicants then moved the Environment and Land Court at Nyeri under Sections 1A and 3A of the Civil Procedure Act, seeking transfer of the pending appeal to that court. The respondent, though served, filed no response. The court reviewed divergent authorities on the fate of appeals pending before defunct Provincial Land Disputes Appeals Committees: Njoroge J held the ELC could take only concluded appeals on questions of law; Angote J favoured transfer of pending appeals to the ELC; Obaga J preferred referral to subordinate courts. The court also considered the Court of Appeal's decision in Chege Macharia v Francis Kimani Kirimira, which suggested the proper course was adoption of the tribunal award by the lower court. Holding that the pending appeal raised a pure question of law - whether the repealed tribunal had jurisdiction over registered land - and noting the repealed statute did not require a lower-court judgment before an appeal on law could lie, the court allowed the application in terms of prayer 1 and transferred the appeal to the ELC for hearing and determination.

Key legal issues

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01

Whether the ELC can receive appeals pending before the defunct Provincial Land Disputes Appeals Committees

Holding

The court held that where the pending appeal raises a pure question of law, it should be transferred to the ELC for hearing and determination, adopting a pragmatic course given the special circumstances.

Reasoning

The court surveyed conflicting decisions of ELC judges: Njoroge J held the ELC lacks jurisdiction over unconcluded appeals involving fact and law; Angote J held such appeals should transfer to the ELC's appellate jurisdiction; Obaga J favoured referral to subordinate courts. The Court of Appeal in Chege Macharia v Kirimira suggested adoption of the award by the lower court, but the court distinguished the special circumstances here: the applicant moved the court, the repealed law did not require a lower-court judgment, and the appeal raised a pure question of law, so transfer to the ELC served expeditious and cost-effective justice.

p. 5
02

The competing judicial approaches to unconcluded Land Disputes Tribunal appeals

Holding

The court acknowledged the law was unsettled, with judges taking divergent approaches.

Reasoning

The court reviewed four decisions, noting some judges favour transfer to lower courts to be heard afresh, others favour transfer to the ELC in appellate jurisdiction, and Njoroge J's view that unconcluded appeals raising fact and law exceed ELC jurisdiction. The court proceeded on the basis that the present appeal raised only a question of law.

p. 4

Legal principles established

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  • Where an appeal pending before a defunct Provincial Land Disputes Appeals Committee raises a pure question of law, the Environment and Land Court may, in the interest of expeditious and cost-effective determination, accept transfer of that appeal for hearing and determination.

Court orders

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  1. 1.The appeal pending before the defunct Land Disputes Appeals Tribunal is transferred to the Environment and Land Court for hearing and determination

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Land Dispute Tribunals ActSections 7(2), 8(8), 8(9), 8(10)
  • Environment and Land Court ActSection 30
  • Interpretation and General Provisions ActCap 2, Section 23(3)
  • Constitution of KenyaArticle 159

Cases cited (10)

  • Dominic Njagi Karong'o v. Mathi Kairaria M'ranyu
    (2014) eKLR
  • The MV SS Lilian
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank
    Application No. 2 of 2011
  • Munga Mbodi Mwenda v Muguza Jangwata Jindwa & another
    [2014] eKLR
  • Annah Kwamboka Ogaro v. Nakuru Provincial Land Disputes Appeals Committee
    (2013) eKLR
  • Francis Kimani Kirimira v. Chege Macharia
    (2015) eKLR
  • Chege Macharia v. Francis Kimani Kirimira
    (2015) eKLR
  • Mutemi Mwasya v Mutua Kasuvu
    Machakos HC.C.A. 140 of 2001
  • Chrispus Michi Gaku v Karanja Wainaina
    [2006] eKLR
  • Peter Ouma Mitai v John Nyarara
    Kisii HCCCA 297 of 2005
On appeal from
Nyeri Provincial Land Disputes Appeals Committee
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; inherent jurisdiction to transfer proceedings

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, "Thomas Muthee & another v Nyaguthii Kaguthu [2015] [2015] KEELC 35 (KLR)", Case Analysis (2015). Notice of Motion dated 29th May, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/35/eng@2015-10-29

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