Moses Omolo Atieno & another v John Njong Onsingo [2019] KEELC 2680 (KLR)
The bottom line
#The High Court dismissed a challenge to a land tribunal decision because the appellants waited nearly three years and never used the appeal routes available to them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the tribunal and/or the trial court had jurisdiction to entertain and determine the dispute
- 2.Whether the appeal has merit
- 3.Whether the appellants are entitled to the orders sought
Key legal issues
#Jurisdiction of the Land Dispute Tribunal over the dispute
The tribunal had jurisdiction because the dispute was one of trespass to land under section 3(1)(c) of the repealed Act
The tribunal's award found that the 1st appellant interfered with the original boundaries of the suit land and declared him a trespasser. Under section 3(1)(c) of the Land Disputes Tribunals Act (Cap 303A), tribunals had power to hear civil disputes concerning trespass to land. The dispute before the tribunal was therefore within its mandate, and the trial magistrate properly adopted the award under section 7(1) and (2).
Inordinate delay and failure to exhaust the statutory appeal procedure
The appeal filed close to three years after the decision was fatal; the appellants should have appealed to the Appeals Committee under section 8 of the repealed Act or sought judicial review
The appeal was filed on 4th June 2014, nearly three years after the tribunal's decision was adopted as judgment, with no explanation for the delay. Section 8 of the repealed Act provided the exclusive route to challenge a tribunal decision: appeal to the Appeals Committee within thirty days, further appeal on a point of law within sixty days, or judicial review. The appellants pursued none of these, and equity under Article 10(2)(b) could not aid their indolence.
Legal principles established
#- Jurisdiction is fundamental; without it a court cannot take any further step
- A party aggrieved by a Land Dispute Tribunal's decision had to appeal to the Appeals Committee or seek judicial review, and cannot create a third avenue where none exists
- On a first appeal, the court is entitled to evaluate the evidence afresh but must bear in mind it neither saw nor heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Rongo Senior Resident Magistrate's Court
- Miscellaneous Civil Application No. 19 of 2011
- Jurisdiction invoked
- First appeal under the Land Disputes Tribunals Act (Cap 303A) (repealed) and sections 79G and 65 of the Civil Procedure Act (Cap 21)
Relief refused
#Setting aside of the trial court's decree adopting the Land Dispute Tribunal award
The appeal was filed nearly three years after the decision without explanation, the appellants did not exhaust the appellate procedure under section 8 of the repealed Act, and the tribunal had jurisdiction over trespass to land
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, it is my considered view that the instant appeal lacks merit. Accordingly, I dismiss the appeal with costs to the respondent.
It must be pointed out that jurisdiction is everything as without it, a court has no power to make one more step
Having failed to pursue any of those options that were open to him, the appellant cannot now come to this court and ask that a third avenue be created for him where none exists.
The appellants did not follow and exhaust the procedure and procedure laid down under section 8(1) to (9) of the Repealed Act.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Omolo Atieno & another v John Njong Onsingo [2019] KEELC 2680 (KLR)", Case Analysis (2019). Appeal from Rongo Senior Resident Magistrate's Court Miscellaneous Civil Application No. 19 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2680/eng@2019-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.