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ELCDismissedKitale Chief Magistrate Land Case No. 9 of 2011 (ruling arising from order of 14/10/2015; Appeal No. 26 of 2011 referenced)· [2016] KEELC 728 (KLR)

Christopher Wafula Mutoro v Richard Lodia Lokere [2016] KEELC 728 (KLR)

Environment and Land Court
27 June 2016
EOE. Obaga
827 words in judgment
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The bottom line

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A Kenyan land dispute review application failed because the applicant couldn't point to a specific error on the court record — and his appeal now proceeds before the Chief Magistrate's Court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (E. Obaga, J) determined a Notice of Motion dated 21/4/2016 brought under Order 45 Rule 1 of the Civil Procedure Rules 2010 seeking review of the court's order of 14/10/2015, which had directed that Appeal No. 26 of 2011 between the parties, lying at the defunct Nakuru Provincial Appeals Committee, be transferred and heard by the Chief Magistrate's Court. The applicant contended that the file was an appeal which only the Environment and Land Court could entertain, and that because the Chief Magistrate's Court had adopted the Kwanza Land Disputes Tribunal award as its judgment, it could not again entertain the appeal. The respondent opposed the application as frivolous and an abuse of process aimed at delaying Kitale Chief Magistrate Land Case No. 9 of 2011. The court held that the applicant had not identified any error apparent on the face of the record; the earlier ruling was clear and had expressly considered Section 30 of the Environment and Land Court Act and Gazette Notice No. 5178 of 28/7/2014, which remain valid and unchallenged. The court further held that under the repealed Land Disputes Tribunal Act, magistrates merely adopted tribunal awards and could not alter them, but adoption did not bar the Chief Magistrate's Court from hearing appeals from the Provincial Appeals Committee, a power conferred by Gazette Notice premised on the Environment and Land Court Act and the Chief Justice's powers. The application was dismissed with costs to the respondent, and the stay orders previously issued were vacated.

Key legal issues

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01

Whether an error apparent on the face of the record existed to justify review

Holding

No error apparent was identified; the ruling under review was clear and made with full awareness of Section 30 of the Environment and Land Court Act and Gazette Notice No. 5178 of 28/7/2014.

Reasoning

Order 45 Rule 1 sets the grounds for review. The applicant relied on error apparent on the face of the record but failed to identify any such error. The prior ruling expressly considered Section 30 of the Environment and Land Court Act and Gazette Notice No. 5178 of 28/7/2014, which remains valid and unchallenged in litigation, so the basis of the order could not be impugned on review.

p. 1
02

Whether the Chief Magistrate's Court, having adopted the Tribunal award as judgment, is barred from hearing the appeal from the Provincial Appeals Committee

Holding

The argument was rejected as without basis; adoption of an award does not disqualify the magistrate's court from hearing the appeal, which it may do under Gazette Notice premised on the Environment and Land Court Act and the Chief Justice's powers.

Reasoning

Under the repealed Land Disputes Tribunal Act, an aggrieved party could appeal either to the Provincial Appeals Committee or to the High Court on a point of law. The applicant chose the Provincial Appeals Committee route. Magistrates' role under that Act was confined to adoption and assistance in execution; that does not preclude them from hearing appeals from the Committee when empowered by Gazette Notice.

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Legal principles established

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  • A party seeking review must point out the specific error apparent on the face of the record; grounds outside Order 45 Rule 1 cannot sustain a review application.
  • Under the repealed Land Disputes Tribunal Act, magistrates' courts only adopted tribunal awards and had no power to alter them, but nothing precludes the Chief Magistrate's Court from hearing appeals from the Provincial Appeals Committee where empowered by Gazette Notice under the Environment and Land Court Act.

Court orders

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  1. 1.The applicant's Notice of Motion dated 21/4/2016 is dismissed with costs to the respondent
  2. 2.The stay orders which had been given in this file are vacated

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 45 Rule 1
  • Environment and Land Court ActSection 30
  • Magistrates Court Actamendments (referred to generally)
  • Land Disputes Tribunal Act (repealed)general
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules 2010 (review); Environment and Land Court Act, Section 30 and Gazette Notice No. 5178 of 28/7/2014

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, "Christopher Wafula Mutoro v Richard Lodia Lokere [2016] KEELC 728 (KLR)", Case Analysis (2016). Kitale Chief Magistrate Land Case No. 9 of 2011 (ruling arising from order of 14/10/2015; Appeal No. 26 of 2011 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/728/eng@2016-06-27

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