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ELCDismissedNotice of motion dated 22nd July 2014 (Nyeri High Court)· [2016] KEELC 223 (KLR)

Naomi Wanjiku Nderitu v Simon Mwangi Njure [2016] KEELC 223 (KLR)

High Court of Kenya
14 October 2016
LWL. N. Waithaka
1,547 words in judgment
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The bottom line

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A Kenyan court dismissed a bid to delay a Land Tribunal award, confirming that once the award is adopted as a judgment, the losing party can still appeal.

What this practically means

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Executive summary

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The applicant, Naomi Wanjiku Nderitu, moved the High Court by notice of motion dated 22nd July 2014 seeking certification as urgent, stay of proceedings in Nanyuki Land Case No. 5 of 2012 and of any consequential execution, and enlargement of time to appeal out of time against the award of the Central Division Laikipia East District Land Disputes Tribunal Case Number 38 of 2011 dated 16th February 2012. She contended she was never invited to the reading of the award, learned of it only during the hearing of the respondent's application to dismiss her suit, and blamed the Tribunal Chairman for failing to file the award for reading. She also argued the Tribunal lacked jurisdiction to order cancellation of her title. The respondent opposed through a replying affidavit and preliminary objection, contending the court lacked jurisdiction, the application offended Order 42 of the Civil Procedure Rules and Sections 7 and 8 of the Land Disputes Tribunal Act, the applicant was guilty of laches and suppression of material facts, and her registration as proprietor was fraudulently procured. Both counsel made submissions and cited authorities. Framing the sole issue as whether the applicant had made out a case for the orders sought, the court was guided by the Court of Appeal decision in Chege Macharia v. Francis Kimani Kirimira, which held that where an award was forwarded but not read before repeal of the Act, the magistrate should adopt it as a judgment, with appeals lying to the High Court. Since the award remained unadopted, adoption would not bar an appeal. The court therefore found the application premised on a misapprehension of the law, dismissed it with costs to the respondent.

Key legal issues

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Whether the court should grant leave to file an appeal out of time and stay proceedings where the Tribunal award has not yet been adopted as a judgment of the court

Holding

The application fails because the award has not been adopted; once adopted, the applicant retains the right to appeal against the judgment or decree, so enlargement of time at this stage is unnecessary and the application is misconceived

Reasoning

The court applied the Court of Appeal decision in Chege Macharia v. Francis Kimani Kirimira, which held that where an award was forwarded but not read before the Land Disputes Tribunals Act was repealed, the magistrate should adopt and read it as a judgment, with appeals lying to the High Court. Since adoption had not occurred, the applicant's fears were premature and the application rested on a misapprehension of the law.

p. 3

Legal principles established

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  • Where an award has been properly forwarded by the Chairman of a Tribunal but was not yet read when the Act was repealed, the proper course is for the magistrate to adopt the award and read it as a judgment of the court, to be followed by decree, execution and appeal to the High Court
  • Adoption of an unadopted Tribunal award as judgment does not extinguish the right to appeal against the resulting judgment or decree

Court orders

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  1. 1.The application dated 22nd July 2014 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Act and Civil Procedure RulesOrder 42
  • Land Disputes Tribunal ActSections 7 and 8
  • Constitution of KenyaSection 65(2) (as cited in M'Arachi M'Mutungi)

Cases cited (5)

  • Ibrahim M'Ikiugu v. Joseph Wambugu Chege & Another
    Meru High Court Civil Application No. 86 of 2010
  • M'Arachi M'Mutungi v. Chief Magistrates Court
    Meru High Court Misc. Application No. 162 of 2009
  • Esther Wanjiku Kibugu v. Julius Nderitu Macharia
    Nyeri Misc. Application No. 152 of 2008
  • Peterson Nguchi Kaburi v. Joseph Thuku Kaburi
    Nyeri Court of Appeal Civil Appeal No. 18 of 2015
  • Chege Macharia v. Francis Kimani Kirimira
    Nyeri Civil Appeal No. 20 of 2015
Jurisdiction invoked
Supervisory and appellate jurisdiction of the High Court over subordinate courts and Land Disputes Tribunal awards (Civil Procedure Act and Rules; Land Disputes Tribunal Act, No. 18 of 1990)

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, "Naomi Wanjiku Nderitu v Simon Mwangi Njure [2016] KEELC 223 (KLR)", Case Analysis (2016). Notice of motion dated 22nd July 2014 (Nyeri High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/223/eng@2016-10-14

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