Erastus Gilbert Kimani & another v Peter Kariuki Njeru [2018] KEELC 656 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you cannot have two land tribunal awards adopted as judgments over the same dispute, dismissing the appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate's discretion in dismissing the review application was exercised judiciously
The discretion was properly exercised; no new evidence, error apparent on the face of the record, or sufficient reason for review under Order 45 was demonstrated
The court applied the settled principles in Mbogo v Shah and Mrao v First American Bank on interference with discretionary decisions. When the Appellants sought review, circumstances had not changed. The trial court's reasons were that the Tribunal's award had already been adopted as a judgment in Award No. 47 of 2011, so reading the Appeal's Committee award would produce two contradictory judgments in one file concerning the same subject matter and parties.
Whether the trial court was duty bound to read and adopt the Appeal's Committee award
The magistrate had no discretion to alter or set aside an award, but rightly declined to read it because a judgment already existed on the same dispute
The court agreed with the authorities cited by the Appellants that a magistrate must read an award under the Land Disputes Tribunals Act and cannot review or set it aside. However, the Act did not envisage multiple awards being adopted over the same subject matter. The magistrate neither reviewed nor altered the second award; she simply declined to read it because the Tribunal's award had already been adopted as a judgment in Award No. 47 of 2011.
Whether the Appellants' right of appeal to the Appeals Committee was defeated by the trial court's orders
The Appellants' own failure to disclose the pending appeal and their absence at adoption caused the problem; they should have taken steps within the establishing legislation to correct the anomaly
The Appellants prosecuted their appeal to the Appeals Committee but did not inform the trial court of its pendency when the Tribunal's award was adopted on 30th June 2011, at which date they were absent. If aggrieved by that adoption, they ought to have pursued remedies under the establishing legislation rather than seeking to have a second contradictory award adopted in a new file.
Legal principles established
#- An appellate court will not interfere with the exercise of judicial discretion unless it is shown the discretion was not exercised judicially, the court misdirected itself on law, or the decision was plainly wrong
- The Land Disputes Tribunals Act did not envisage multiple awards being read and adopted in respect of the same subject matter between the same parties
- A magistrate receiving a tribunal award has no jurisdiction to review, amend, alter or set aside the award, but may decline to read it where a judgment already exists on the same subject matter
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Resident Magistrate's Court, Embu
- Embu CM's Award No. 59 of 2011
- Jurisdiction invoked
- First appeal under the repealed Land Disputes Tribunals Act, 1990 (appeal from ruling in Embu CM's Award No. 59 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erastus Gilbert Kimani & another v Peter Kariuki Njeru [2018] KEELC 656 (KLR)", Case Analysis (2018). E.L.C.A Case No. 15 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/656/eng@2018-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.