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ELCAllowedNotice of motion dated 1st January, 2015· [2016] KEELC 333 (KLR)

Dominic Mbatia Chuchu v Anthony Kibanya Gachugu [2016] KEELC 333 (KLR)

Environment and Land Court
25 October 2016
833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, Dominic Mbatia Chuchu, moved the court by notice of motion dated 1st January 2015 seeking the removal and transfer of an appeal allegedly pending at the defunct Provincial Land Disputes Appeals Committee to the Environment and Land Court, invoking Section 30 of the Environment and Land Court Act, 2011, which he argued required pending tribunal matters to be moved to the nearest High Court upon abolition of the tribunals. The respondent opposed, contending there was no evidence the appeal existed, that any such appeal was incompetent as filed out of time, and that the orders sought would serve no useful purpose; counsel further argued the Tribunal had no jurisdiction. The court framed two issues: whether the appeal existed, and whether it should be transferred. On the first, the applicant's supplementary affidavit documents - grounds of appeal, a payment receipt, a Provincial Commissioner's letter of 18th August 2011, and proceedings showing the award was read on 8th August 2011 with a 30-day right of appeal - satisfied the court that the appeal had been filed. On the second, the court followed the Court of Appeal's decision in Chege Macharia v. Francis Kimani Kirimira (2015) eKLR on the fate of tribunal matters after the repeal. Since the award had been read to the parties and only the appeal remained, the court held itself the proper forum, allowed the application as prayed and ordered the transfer. Objections as to jurisdiction and time bar were left for determination in the appeal.

Key legal issues

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01

Whether a pending appeal existed at the defunct Provincial Appeals Tribunal

Holding

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

Reasoning

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.

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02

Whether the appeal should be transferred to the Environment and Land Court

Holding

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

Reasoning

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.

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Whether the Tribunal's jurisdiction and the alleged time bar could be determined in this application

Holding

No - those are matters for the appeal itself, not the transfer application

Reasoning

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.

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Legal principles established

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  • 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

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  1. 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

Authorities

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Legislation

  • Environment and Land Court ActSection 30

Cases cited (1)

  • Chege Macharia v. Francis Kimani Kirimira
    (2015) eKLR
Jurisdiction invoked
Section 30, Environment and Land Court Act, 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, "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.