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ELCAllowedKigumo PMC Land Case No. 20 of 2008 (appeal thereto)· [2015] KEELC 535 (KLR)

Francis Kimani Kirimira v Chege Macharia [2015] KEELC 535 (KLR)

Environment and Land Court
22 April 2015
LWL N Waithaka
2,162 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that magistrates cannot enter judgment on Land Disputes Tribunal awards that were never formally adopted before the Tribunals were abolished.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Nyeri, decided by L N Waithaka J on 22nd April 2015, against the decision of Hon. A.N Oganda RM in Kigumo PMC Land Case No. 20 of 2008. The respondent had moved the lower court under Order 51 of the Civil Procedure Rules for entry of judgment in terms of an award of the Kigumo Land Disputes Tribunal dated 3rd October 2008. The appellant objected, arguing that the application was incompetent because section 7(2) of the Land Disputes Tribunals Act, which had permitted adoption of Tribunal awards, had been repealed by the Environment and Land Court Act, 2011; that the suit property was subject to a succession cause and had been subdivided; and that a pending appeal before the Provincial Land Disputes Appeals Tribunal, with a status quo order, had been ignored. The trial Magistrate dismissed the objection and entered judgment in terms of the award. On appeal, the court considered the Chief Justice's practice directions issued under section 30 of the Environment and Land Court Act (Gazette Notice No. 5178 of 17th July 2014), which required pending matters from defunct Tribunals to continue being heard and determined by the courts to which they were transferred. The court held that the new law does not permit entry of judgment on Tribunal awards that were never adopted as judgments, and that the pending Tribunal appeal should have been transferred for hearing and determination as a first-instance matter. The appeal was accordingly allowed as prayed; no costs order is recorded. Other issues raised were rendered nugatory by this determination.

Key legal issues

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01

Whether the Magistrates' Court had jurisdiction to enter judgment in terms of a defunct Tribunal's award after repeal of the Land Disputes Tribunals Act

Holding

It did not; the new regime requires the transferee court to hear and determine the case rather than adopt the award.

Reasoning

The Environment and Land Court Act repealed the Land Disputes Tribunals Act and, through section 30 as read with the Chief Justice's practice directions, conferred jurisdiction on Magistrates' Courts to hear and determine transferred cases. The Act does not contemplate entry of judgment on awards that were never adopted under section 7(2) of the repealed Act, so the lower court had no mandate to enter judgment in terms of the award.

p. 4
02

What procedure applied to the pending appeal before the defunct Provincial Land Disputes Appeals Tribunal

Holding

The appeal should have been transferred to the court with jurisdiction for hearing and determination as a first-instance matter.

Reasoning

Section 30 of the Environment and Land Court Act empowered the Chief Justice to issue practice directions on pending matters. The 17th July 2014 practice directions provided that pending matters transferred to or before Magistrates' Courts continue to be heard there, and appeals lie to the Environment and Land Court. Accordingly, the pending Tribunal appeal should have been transferred for hearing, not bypassed by entry of judgment on the award.

p. 4

Legal principles established

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  • Upon repeal of the Land Disputes Tribunals Act, unadopted Tribunal awards could not be entered as judgments of the Magistrates' Court; the transferee court's mandate is to hear and determine the case afresh.
  • Pending appeals before defunct Provincial Land Disputes Appeals Tribunals ought to have been transferred to the court with jurisdiction for hearing and determination as a court of first instance, not decided as an appeal.

Court orders

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  1. 1.Appeal allowed with the result that the lower court's decision entering judgment in terms of the Kigumo Land Disputes Tribunal award is overturned

Authorities

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Legislation

  • Land Disputes Tribunals ActSection 7(2)
  • Environment and Land Court ActSection 30
  • Environment and Land Court ActSection 13(4)
  • Civil Procedure RulesOrder 51
  • Chief Justice's Practice Directions (Gazette Notice No. 5178 of 17th July 2014)Paragraphs 6 and 13
On appeal from
Kigumo Principal Magistrate's Court
Land Case No. 20 of 2008
Jurisdiction invoked
Environment and Land Court Act, section 13(4) (appeals from Magistrates' Courts and Tribunals lie in the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Francis Kimani Kirimira v Chege Macharia [2015] KEELC 535 (KLR)", Case Analysis (2015). Kigumo PMC Land Case No. 20 of 2008 (appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/535/eng@2015-04-22

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