Dominic Mbatia Chuchu v Anthony Kibanya Gachugu [2016] KEELC 333 (KLR)
The bottom line
#The Environment and Land Court in Nyeri confirmed that appeals left pending at abolished land tribunals must be transferred to it for hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether a pending appeal existed at the defunct Provincial Appeals Tribunal
Yes - the applicant demonstrated by documentary evidence (grounds of appeal, payment receipt, Provincial Commissioner's letter and lower court proceedings) that an appeal had been filed
The respondent contested the existence of the appeal. The court examined the documents annexed to the applicant's supplementary affidavit: grounds of appeal and payment receipt, a letter dated 18th August 2011 from the Provincial Commissioner's office confirming the appeal was filed, and lower court proceedings showing the award was read on 8th August 2011 with a 30-day right of appeal. On this basis the court was satisfied the appeal existed.
Whether the appeal should be transferred to the Environment and Land Court
Yes - the award had been read to the parties as required by law and only the appeal remained, so this court is the proper forum following Chege Macharia v. Francis Kimani Kirimira
The court adopted the Court of Appeal's guidance in Chege Macharia v. Francis Kimani Kirimira that appeals from tribunal awards, the Provincial Appeals Committee having been abolished by repeal of the Act, lie to the High Court. Since the award had already been read to the parties and the appeal was pending when the tribunals were abolished, the Environment and Land Court is the right forum, and the application was allowed as prayed.
Whether the Tribunal's jurisdiction and the alleged time bar could be determined in this application
No - those are matters for the appeal itself, not the transfer application
The respondent argued that the Tribunal lacked jurisdiction and that the appeal was filed out of time. The court held that such objections could not be resolved in a transfer application; they are substantive issues properly determined in the appeal itself, subject to the outcome of the application.
Legal principles established
#- Where a tribunal award had been read to the parties before the tribunal's repeal and only the appeal remained pending, that appeal falls to be heard by the Environment and Land Court / High Court in accordance with the transition provisions
Court orders
#- 1.The appeal pending at the defunct Provincial Appeals Tribunal is transferred to this court for hearing and determination; the application is allowed as prayed
- Jurisdiction invoked
- Section 30, Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dominic Mbatia Chuchu v Anthony Kibanya Gachugu [2016] KEELC 333 (KLR)", Case Analysis (2016). Notice of motion dated 1st January, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/333/eng@2016-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.