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ELCOtherChuka ELC Appeal Case No. 07 of 2019 (formerly Meru ELC Appeal Case No. 79 of 2019, formerly Meru High Court Civil Appeal No. 02 of 2011)· [2019] KEELC 1944 (KLR)

John Karani Mwendwa v Japhet Bundi Chabari [2019] KEELC 1944 (KLR)

Environment and Land Court of Kenya at Chuka
29 July 2019
7,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Chuka Environment and Land Court confirmed a 2015 judgment enforcing a land tribunal award, closed the file, and warned against reviving decided cases.

What this practically means

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Executive summary

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This is a chambers ruling delivered by P. M. Njoroge, J, at Chuka on 29th July 2019 in Chuka ELC Appeal No. 07 of 2019, a file transferred from Meru and renumbered from Meru ELC Appeal No. 79 of 2019, formerly Meru HCA No. 02 of 2011. The judge found that the appeal in Meru HCA No. 02 of 2011 had been heard and determined, with judgment dismissing the appeal delivered on 14th January 2015, the full text of which is reproduced, together with the ruling of 12th April 2017 dismissing the petitioner's application for the judge's recusal. The 2015 judgment held the appeal premature or out of time, grounds 2 to 4 factual rather than points of law under section 8(8) and 8(9) of the Land Disputes Tribunals Act, and dismissed it for want of the judicial certification required for a point-of-law appeal, with costs to the respondent. The court observed that someone was contriving to abuse the court's process by resuscitating the closed file. It reproduced the decisions of the Provincial Land Disputes Appeals Committee of 8th November 2010 and the Maara District Tribunal of 29th May 2009, which ordered transfer of Mwimbi/East Magutuni/680 to the plaintiff. The court issued consequential orders: marking the file closed except for implementation of the 2015 judgment enforcing the 2009 Tribunal award; directing that the Chuka file be used for all consequential issues including execution in the absence of the original lower court file; and confirming costs as ordered in the 2015 judgment. The ruling was to be availed to the parties and implementation directed accordingly.

Key legal issues

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01

Whether the transferred file contained any live matter for determination

Holding

The court found the matter had already been heard and determined on 14th January 2015 and that the continued prosecution of the file was an abuse of process; the file was marked closed save for consequential issues.

Reasoning

The judge noted that Meru HCA 02 of 2011 was heard and determined with judgment dismissing the appeal delivered on 14th January 2015. The Deputy Registrar's letter of 25th July 2019 merely renumbered the skeleton file upon transfer to Chuka. Given the determination four and a half years earlier, the court concluded that someone was contriving to abuse the court's process and closed the file.

p. 11
02

Whether the 14th January 2015 judgment validly dismissed the appeal (reproduced judgment considered)

Holding

The appeal was dismissed as improperly before the court: it was premature or out of time, grounds 2 to 4 raised facts rather than points of law, new issues were introduced, and no judicial certification that a point of law was involved had been obtained.

Reasoning

The court applied section 8(8) and 8(9) of the Land Disputes Tribunals Act: the Appeals Committee's decision is final on fact and appeal to the High Court lies only on a point of law within sixty days and only if certified by a judge. The appeal was filed before adoption of the award (or long after), grounds 2 to 4 required evidence, and the jurisdiction/res judicata issues were new. Lacking certification, the appeal merited dismissal.

p. 3
03

The effect of the transferred file on implementation of the 2009 Tribunal award

Holding

In the absence of the original lower court file at Meru, the Chuka file is to be used for all consequential issues, including execution of the 2015 judgment enforcing the Mwimbi Division Land Disputes Tribunal decision of 29th May 2009.

Reasoning

The court reproduced the Tribunal decisions and the 2015 judgment, whose consequence is enforcement of the Tribunal award ordering transfer of Mwimbi/East Magutuni/680 to the plaintiff. Since the lower court file was not available at Meru, the Chuka file serves all consequential and execution purposes.

p. 11

Legal principles established

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  • A court's jurisdiction flows from the Constitution or written law and cannot be self-conferred
  • An appeal under section 8(9) of the Land Disputes Tribunals Act requires a judge's certificate that a point of law is involved, and failure to obtain one is an express provision of the law, not a mere technicality
  • The mere fact that a judge has rendered an unfavourable decision in a suit is not an automatic ground for recusal at the instance of the losing party
  • The threshold for a finding of reasonable apprehension of bias is high and the onus lies on the person alleging it

Court orders

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  1. 1.This file should be marked closed except for consequential issues apposite to the implementation of this court's judgment delivered on 14th January, 2015 whose consequence is to enforce the decision of Mwimbi Land Disputes Tribunal delivered on 29th May, 2009
  2. 2.In the absence of the original lower court's file at Meru, this file should be used for all consequential issues, including execution where necessary, of this court's judgment delivered on 14th January, 2015 and more particularly, the implementation of Mwimbi Division Land Disputes Tribunal decision delivered on 29th May, 2009
  3. 3.Costs concerning this suit but not concerning any other suit or petition involving the two parties, are as ordered in this court's judgment delivered at Meru on 14th January, 2015
  4. 4.This Ruling be sent or availed to the parties
  5. 5.Implementation accordingly

Authorities

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Legislation

  • Registered Land Act (Cap 300, repealed)Cap 300 generally
  • Land Disputes Tribunals Act (Cap 303A)Section 8(8) and 8(9); Section 3
  • Land Disputes Tribunals (Forms and Procedure) Rules, 1993Rule 20
  • Constitution of Kenya, 2010Articles 2(1), (4), 19(2), (3), 21(1), 23(1), 25(c), 27, 28, 40, 45(1), 50(1), 159(2), 165(3)(b)
  • Judicature Act (Cap 18)not specified
  • Law of Succession Act (Cap 160)Section 48
  • Judicial Service Code of Conduct and EthicsPreamble; Rule 5; Rule 10(1)

Cases cited (11)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 Others
    Petition 2 of 2011
  • Attorney General of Kenya v Prof. Anyang Nyong'o and 10 others
    EACJ Application No. 5 of 2007
  • Porter v Magill
    [2002] 2 AC 357
  • Philip K. Tunoi & Another v Judicial Service Commission
    [2016] eKLR
  • Kalpana H. Rawal v Judicial Service Commission and 2 others
    [2016] eKLR
  • R v R.D.
    [1977] 3 SCR 484
  • Civicon Limited v Kenya Revenue Authority and 2 others
    [2014] eKLR
  • Juma Kiprono Kandie and two others v Communications Authority of Kenya
    [2015] eKLR
  • Ismail Tulamalal and two others v Stephen Kipkatam Kenduiyua and seven others
    [2010] eKLR
  • Locabail (UK) Ltd v Bayfield Properties Limited
    [2000] QB 451
  • Kaplan & Stratton v Z. Engineering Construction Ltd & 2 others
    [2000] KLR
Jurisdiction invoked
Powers of the Environment and Land Court to regulate its own records and process consequential to a judgment delivered on 14th January 2015 in Meru HCA No. 02 of 2011 upon transfer to Chuka

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 Karani Mwendwa v Japhet Bundi Chabari [2019] KEELC 1944 (KLR)", Case Analysis (2019). Chuka ELC Appeal Case No. 07 of 2019 (formerly Meru ELC Appeal Case No. 79 of 2019, formerly Meru High Court Civil Appeal No. 02 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1944/eng@2019-07-29

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