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ELCPartially AllowedLand Appeal Case No. 51 of 2008 (Appeal against Eastern Provincial Land Appeals Committee Award)· [2018] KEELC 2255 (KLR)

Munziku Kiio & another v Daniel Kimonyi Ndingu [2018] KEELC 2255 (KLR)

Environment and Land Court of Kenya
31 July 2018
OAO.A. Angote
1,245 words in judgment
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The bottom line

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A Kenyan court threw out a land appeal because it was filed more than 30 days after the Tribunal's decision — deadlines run from the award, not later court steps.

What this practically means

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Executive summary

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The Appellants, who claimed to have purchased the suit land on 24th February 1990, appealed by way of a second appeal to the Environment and Land Court against the Award of the then Eastern Provincial Land Appeals Committee in Land Appeal Case No. 51 of 2008 delivered on 7th October 2008. That Committee had allowed the Respondent's appeal against the Award of the Makueni Land Disputes Tribunal in Case No. 001 of 2008, in which the Tribunal had found the Appellants entitled to the land and had directed sharing of the 1st Appellant's land. The Appellants raised four points: that the Committee's appeal was filed out of time, that it was res judicata given Kilungu Civil Case No. 7 of 2000 and Criminal Case No. 39 of 2000, that the Appellants were denied a hearing, and that the Tribunal lacked jurisdiction. The court, sitting as a second appeal under section 8(9) of the repealed Land Disputes Tribunals Act, confined itself to points of law. It held that under section 8(1) the thirty-day appeal period ran from the Tribunal's Award of 9th April 2008, not from the Magistrate's adoption of the Award on 18th June 2008; the Respondent's appeal lodged on 11th July 2008 was therefore statute barred and could not stand. The court found no res judicata, the prior civil and criminal matters concerning different issues. The appeal succeeded on the limitation ground alone: the Committee's judgment was set aside, with costs of the appeal to the Respondent. Judgment delivered at Machakos on 31st July 2018 by O.A. Angote J.

Key legal issues

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01

Commencement of the 30-day appeal period to the Provincial Land Appeals Committee

Holding

Time runs from the date of the Tribunal's Award (9th April 2008), not the adoption of the Award by the Magistrate (18th June 2008); the appeal filed on 11th July 2008 was out of time and cannot stand.

Reasoning

Section 8(1) of the Land Disputes Tribunals Act permits a party aggrieved by the decision of the Tribunal to appeal to the Appeals Committee within thirty days of the decision. The decision appealed against is that of the Tribunal, not the judgment of the Magistrate adopting it. Since the Respondent filed on 11th July 2008, more than thirty days after the Award of 9th April 2008, the appeal was statute barred.

p. 2
02

Res judicata

Holding

The dispute before the Tribunal and Appeals Committee was not res judicata.

Reasoning

Kilungu Civil Suit No. 7 of 2000 concerned a claim for general damages arising from a cursing oath and did not deal with ownership of the suit land; Kilungu Criminal Case No. 39 of 2000 was a criminal case for malicious damage, not a civil dispute for recovery of land. The issues therefore differed from those before the Tribunal.

p. 2
03

Scope of a second appeal under section 8(9) of the repealed Land Disputes Tribunals Act

Holding

A second appeal from the Appeals Committee to the High Court (ELC) lies only on points of law, not on matters of fact.

Reasoning

Section 8(9) allows an appeal to the High Court on a point of law within sixty days of the decision complained of. Being a second appeal, the court confines itself to questions of law: limitation, res judicata, hearing of the Appellants and jurisdiction of the Tribunal.

p. 1

Legal principles established

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  • Under section 8(1) of the Land Disputes Tribunals Act, the 30-day period for appealing to the Appeals Committee runs from the date of the Tribunal's Award, not from the date the Magistrate adopts the Award as a judgment of the court.

Court orders

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  1. 1.The Eastern Provincial Land Appeals Committee's Judgment in Land Appeal Case No. 51 of 2008 is set aside
  2. 2.The costs of this Appeal to be paid by the Respondent

Authorities

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Legislation

  • Land Disputes Tribunals Act (repealed)Section 8(1)
  • Land Disputes Tribunals Act (repealed)Section 8(9)
  • Land Disputes Tribunals Act (repealed)Section 3
On appeal from
Eastern Provincial Land Appeals Committee
Land Appeal Case No. 51 of 2008
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunals Act (repealed) - second appeal to the High Court (ELC) on a point of law within sixty days

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, "Munziku Kiio & another v Daniel Kimonyi Ndingu [2018] KEELC 2255 (KLR)", Case Analysis (2018). Land Appeal Case No. 51 of 2008 (Appeal against Eastern Provincial Land Appeals Committee Award). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2255/eng@2018-07-31

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