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ELCDismissedMiscellaneous Application (Notice of Motion dated 19th December 2016)· [2017] KEELC 1773 (KLR)

John Mbae Tingiwas v Rose Igoki & 2 others [2017] KEELC 1773 (KLR)

Environment and Land Court
21 September 2017
PNP.M. Njoroge
2,133 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled you cannot appeal or stop execution of a land tribunal decision if you were never a party to that case.

What this practically means

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Executive summary

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The applicant, John Mbae Tingiwas, moved the court by Notice of Motion dated 19th December 2016 seeking a stay of execution of the orders issued in Chuka L.D.T. Case No. 42 of 2010 in respect of LR. Muthambi/Erega/71, and leave to file an appeal out of time against the Tribunal's judgment, decrees and consequential orders. He argued that the land had already been distributed in Chuka Principal Magistrate's Court Succession Cause No. 11 of 2001, that he resided on the land but was not made a party to the Tribunal proceedings, and that the Tribunal acted ultra vires in arbitrating over land registered in the name of a deceased person. The 1st and 2nd respondents opposed through the affidavit of the 2nd respondent, contending that the applicant was not a party to either LDT Case No. 42 or No. 48 of 2010, lacked locus standi, and that the repealed Land Disputes Tribunals Act made no provision for extension of time. The applicant served the hearing date but did not appear to prosecute the motion. The court found the application lacked merit: the applicant, being a stranger to the Tribunal proceedings, had no basis to appeal or seek a stay; the repealed Act had no extension-of-time mechanism; the Appeals Committees under section 8 no longer existed; and it would be unconscionable to extend time many years after the decision. The application was dismissed with costs to the respondents.

Key legal issues

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01

Locus standi of non-party to Tribunal proceedings

Holding

The applicant, having not been a party to Chuka L.D.T. Case No. 42 of 2010 or No. 48 of 2010, has no locus standi to apply for stay of execution or to appeal against the Tribunal award

Reasoning

The court found that the applicant was not a party to either of the LDT cases cited. Consequently, he had no right of appeal against the Tribunal award and no basis to seek a stay of execution of orders made in proceedings to which he was a stranger. The respondents had also deponed that the applicant never sought to be enjoined in either LDT case.

p. 5
02

Extension of time under the Land Disputes Tribunals Act

Holding

The Land Disputes Tribunals Act (now repealed) contained no provision for extension of time to appeal, and no forum exists to receive such an appeal

Reasoning

The court held that the repealed Act had no mechanism for extension of time, and in any event the Appeals Committees established under section 8 no longer exist following the repeal. Even if the law had allowed it, the court found it would be unconscionable to extend time many years after the impugned decision.

p. 5

Legal principles established

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  • The Land Disputes Tribunals Act contained no provision for extension of time to appeal out of time
  • A person who was not a party to proceedings before a Land Dispute Tribunal cannot purport to appeal against the Tribunal's award
  • The repeal of the Land Disputes Tribunals Act abolished the Appeals Committees contemplated by section 8 of the Act

Court orders

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  1. 1.The application dated 19th December 2016 is dismissed
  2. 2.Costs are awarded to the respondents

Authorities

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Legislation

  • Land Disputes Tribunals Actsection 8
Jurisdiction invoked
Inherent jurisdiction of the court to entertain a Notice of Motion for stay and extension of time to appeal out of time

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, "John Mbae Tingiwas v Rose Igoki & 2 others [2017] KEELC 1773 (KLR)", Case Analysis (2017). Miscellaneous Application (Notice of Motion dated 19th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1773/eng@2017-09-21

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