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ELCDismissedELC No. 281 of 2016 (Nakuru), formerly High Court Civil Appeal No. 49 of 2008· [2019] KEELC 1650 (KLR)

David Kiberenge & another v Peter Njoroge Chuga & another [2019] KEELC 1650 (KLR)

Environment and Land Court
30 September 2019
2,532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once a Land Disputes Tribunal award was filed, magistrates had to enter judgment as-is — the only way to challenge it was in a superior court.

What this practically means

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Executive summary

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This is a first appeal, originally filed in the High Court as Civil Appeal No. 49 of 2008 and transferred to the Environment and Land Court at Nakuru as ELC No. 281 of 2016, against a ruling of Hon. G. Sagero, District Magistrate II, delivered on 18th March 2008 in Land Dispute No. 83 of 2007 at Molo. The ruling dismissed the appellants' Notice of Motion dated 29th January 2008 seeking review and removal from the record of an award of the purported Molo Land Dispute Tribunal dated 20th November 2007, a declaration that no such tribunal existed in law, and that its award be declared of no legal consequence. The tribunal's award had apportioned Plot No. 533/426 in Molo Town equally among Eliud Kiberenge, Jeniffer Njoki and Beatrice Wambui Nginga. The magistrate held that his role upon filing of a tribunal award under Section 7(2) of the Land Disputes Tribunals Act, 1990 (repealed) was merely clerical - to enter judgement in accordance with the award - and that he had no jurisdiction to grant the orders sought. Ohungo J, applying Selle v Associated Motor Boat Co. on the duty of a first appellate court and Mbogo v Shah on interference with discretion, agreed that the magistrate could not reverse the tribunal's decision or inquire into its legality, and that the appellants' recourse lay in an appropriate superior court. All grounds of appeal failed and the appeal was dismissed with costs to the respondents.

Key legal issues

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01

Scope of the magistrate's role in adopting a Land Disputes Tribunal award

Holding

The magistrate's role is clerical: to read the award, enter judgement in accordance with it and issue a decree; he cannot review the award or inquire into the tribunal's legality

Reasoning

Section 7(2) of the Land Disputes Tribunals Act, 1990 (repealed) mandated the court to enter judgement in accordance with the tribunal's decision once the award was filed. The magistrate therefore lacked jurisdiction to grant orders whose effect would be to reverse the tribunal's decision or to declare the tribunal non-existent. The appellants' remedy lay in a superior court. Ground 6 and the related grounds therefore failed.

p. 2
02

Interference with discretionary decisions on appeal

Holding

The appeal being against an order made in the exercise of discretion, the court would not interfere absent misdirection or manifest wrongness

Reasoning

Relying on Mbogo and Another v Shah, the court held that a discretion exercised in accordance with the law cannot be disturbed on appeal. Since the magistrate's refusal to grant review orders was 'clearly in line with what the law expected of him', there was no misdirection. As a first appeal, the court re-evaluated the material under Selle v Associated Motor Boat Co. but found no basis to depart from the magistrate's conclusion.

p. 4

Legal principles established

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  • Upon filing of a Land Disputes Tribunal award, the magistrate's court must enter judgement in accordance with the tribunal's decision and has no jurisdiction to review, nullify or declare the tribunal illegal; recourse lies in an appropriate superior court
  • An appellate court will not interfere with the exercise of discretion by a lower court unless the discretion was misdirected or the decision is clearly wrong, resulting in mis-justice

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Land Disputes Tribunals Act, 1990 (repealed)Section 7(1) and 7(2)
  • Civil Procedure Act
  • Civil Procedure Rules (then applicable)Order XLIV Rule 1

Cases cited (3)

  • Selle v Associated Motor Boat Co. & others
    [1968] E.A. 123
  • Abdul Hameed Saif v Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Mbogo and Another v Shah
    [1968] EA 93
On appeal from
Resident Magistrate's Court at Molo
Land Dispute No. 83 of 2007 (ruling on Notice of Motion dated 29th January 2008)
Jurisdiction invoked
First appeal from the Resident Magistrate's Court under Section 7 of the Land Disputes Tribunals Act, 1990 (repealed) and the Civil Procedure Act; appeal originally filed in the High Court as Civil Appeal No. 49 of 2008 and transferred to the Environment and Land Court on 25th July 2016

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, "David Kiberenge & another v Peter Njoroge Chuga & another [2019] KEELC 1650 (KLR)", Case Analysis (2019). ELC No. 281 of 2016 (Nakuru), formerly High Court Civil Appeal No. 49 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1650/eng@2019-09-30

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