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ELCStruck OutMemorandum of Appeal dated 24th August, 2015 (appeal against Thika Division Land Disputes Tribunal Award of 27th May, 2009 adopted by the lower court on 22nd September, 2009)· [2019] KEELC 1943 (KLR)

Philip Kamangu Gatiu & another v Mary Wanjiku Wamutu [2019] KEELC 1943 (KLR)

Environment and Land Court of Kenya
28 June 2019
OAO. A. AngoteLGL. Gacheru
692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land appeal because the file was incomplete and prior court proceedings were hidden.

What this practically means

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Executive summary

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The Appellants, holding Letters of Administration in the Estate of Hannah Wanjiku Mwangi and a title to Ruiru/Mugutha Block 1/T 2734, appealed against an award of the Thika Division Land Disputes Tribunal of 27th May, 2009, adopted by the lower court on 22nd September, 2009, which had favoured the Respondent. The Appellants asserted they purchased the suit properties in 1998 and obtained titles in 2008, contending the Tribunal lacked jurisdiction to order cancellation of their titles. The Respondent countered that any appeal was lodged out of time and that the jurisdictional complaint ought to have been raised by way of judicial review. The court noted the Respondent had claimed before the Tribunal to have purchased the parcels from Rurii One Four Self Help Group. The appeal was argued by written submissions. The court then found the Record of Appeal deficient: the Tribunal's award was absent and the Tribunal proceedings, which formed the foundation of the appeal, were incomplete, rendering the appeal incapable of determination. The court further observed that the Appellants had previously challenged the Tribunal's decision in the High Court through Judicial Review Application No. 53 of 2011, which was dismissed, but had not included that judgment in the record, so the court could not tell whether the issues in the appeal duplicated those litigated in the judicial review. Holding that the omissions amounted to non-disclosure of material facts, the court struck out the appeal with costs.

Key legal issues

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01

Effect of incomplete Tribunal proceedings on the appeal

Holding

The appeal could not be determined because the Tribunal's award was missing and the proceedings were incomplete

Reasoning

The court perused the entire Record of Appeal and found no award from the Tribunal; the proceedings which were the basis of the appeal were incomplete. Without the foundational record, the court could not evaluate the merits of the challenge to the Tribunal's decision, leaving striking out as the only recourse.

p. 1
02

Non-disclosure of prior judicial review proceedings

Holding

The Appellants' failure to include the High Court judgment in Judicial Review Application No. 53 of 2011 constituted non-disclosure of material facts warranting striking out of the appeal

Reasoning

The record showed the Appellants had previously challenged the Tribunal's decision in the High Court by judicial review, which was dismissed. By omitting that judgment, the court could not ascertain whether the issues raised in the appeal were the same as those litigated in the judicial review, and this non-disclosure was independently fatal to the appeal.

p. 2

Legal principles established

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  • An appellate court cannot determine an appeal where the record is incomplete, and non-disclosure of material facts justifies striking out an appeal

Court orders

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  1. 1.The Appellants' Appeal struck out with costs

Authorities

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Legislation

  • Land Disputes Tribunals Act (implied by the Tribunal and Appeals Committee scheme)Appeal to Provincial Land Appeals Committee
On appeal from
Thika Division Land Disputes Tribunal (Award adopted by the lower court)
TKA/LDT/41/2008
Jurisdiction invoked
Appeal from a Land Disputes Tribunal award under the repealed Land Disputes Tribunals Act, following an appeal to the Provincial Land Appeals Committee which was abolished by operation of the law

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, "Philip Kamangu Gatiu & another v Mary Wanjiku Wamutu [2019] KEELC 1943 (KLR)", Case Analysis (2019). Memorandum of Appeal dated 24th August, 2015 (appeal against Thika Division Land Disputes Tribunal Award of 27th May, 2009 adopted by the lower court on 22nd September, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1943/eng@2019-06-28

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