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ELCDismissedBungoma High Court Appeal (from Bungoma CMC LDT No. 70 of 2009)· [2019] KEELC 3782 (KLR)

Mathew Wanyonyi & 2 others v Shaddy Kuloba Manyasi Respondent [2019] KEELC 3782 (KLR)

High Court of Kenya
27 March 2019
3,117 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Bungoma dismissed a land appeal, confirming that failing to appeal a Land Disputes Tribunal award within 30 days ends your claim to the land.

What this practically means

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Executive summary

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This is an appeal to the High Court at Bungoma by the 1st and 2nd Appellants (the 3rd Appellant having died) against a ruling of G. Sogomo, RM delivered on 9th March 2009 in Bungoma CMC LDT No. 70 of 2009, which allowed the Respondent's application dated 23rd December 2008 for reconstruction of a lost court file and for the eviction of the Appellants from parcel E.BUKUSU/E. SANGALO/1562. The underlying dispute was heard by the Kanduyi Land Disputes Tribunal in 1999, which found the Appellants were trespassers and restrained further development; its award was filed and adopted as judgment of the Chief Magistrate's Court on 6th March 2000, with no appeal filed to the Appeals Committee within 30 days. Boaz N. Olao J held that, having failed to appeal the Tribunal's award, the Appellants could not mount an appeal against a ruling arising from the execution process; the appeal was therefore incompetent, but its merits were nonetheless considered because it had been admitted by Muchemi J in 2010. On the merits, the court held that the file was properly reconstructed under Section 3A of the Civil Procedure Act from undisputed copies of pleadings and orders; that a substantive suit had been heard and determined before the Tribunal; and that the trial magistrate was entitled to order eviction to give teeth to the Tribunal's finding of trespass. The court distinguished Peter Muiruri Kamau and declined to follow Ransley J's view that a Tribunal cannot order eviction, holding instead that a Tribunal finding trespass may properly order eviction, enforceable through a decree under Section 7(2) of the repealed Act. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial magistrate erred in ordering eviction when the Tribunal had not made such an order

Holding

No error; the magistrate was entitled to grant eviction to give teeth to the Tribunal's finding of trespass, since courts should not act in vain

Reasoning

The Tribunal's award dated 4th June 1999 determined the Appellants were trespassers. Although it made no express eviction order, the trial magistrate, on an application for execution, was entitled to order eviction to render the award effectual. The court also rejects the contrary view in Peter Muiruri Kamau, holding a Tribunal may properly order eviction following a finding of trespass, with enforcement through a decree under Section 7(2) of the repealed Act.

p. 3
02

Whether the magistrate erred in deciding without the original file

Holding

No error; the file was properly reconstructed under Section 3A of the Civil Procedure Act from undisputed copies of pleadings and orders

Reasoning

The original file disappeared after the Tribunal's award was adopted as judgment. The Respondent annexed copies of pleadings and orders which the Appellants did not dispute or contradict. The magistrate was entitled to presume them a true reflection of the original file. Shutting out a party able to produce authentic copies would incentivise disappearance of files and be a serious blow to the administration of justice.

p. 2
03

Whether there was a substantive suit heard and finalized

Holding

There was; the claim before the Tribunal was a suit, heard and determined, and its adoption as judgment was never appealed against

Reasoning

A suit includes all civil proceedings commenced in a prescribed manner. The Respondent presented a claim to the Tribunal under Section 3(2) of the repealed Act; it was heard, an award made, filed and adopted as judgment on 6th March 2000. No appeal lay to the Appeals Committee under Section 8(1). It is therefore wrong to contend no substantive suit was heard and finalized.

p. 3
04

Whether the trial magistrate had jurisdiction to grant eviction

Holding

Trespass was within the Tribunal's jurisdiction under Section 3(1); the magistrate did not err in granting the eviction order following the Tribunal's finding

Reasoning

The court distinguishes Peter Muiruri Kamau, where Ransley J was exercising appellate jurisdiction under Section 8(9) over a Tribunal decision; no such appeal existed here. The dispute being one of trespass was within the Tribunal's jurisdiction, and the trial magistrate properly addressed the two issues before him on cogent, unrebutted evidence.

p. 4

Legal principles established

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  • A Land Disputes Tribunal, having determined trespass, may properly order eviction as the remedy that ordinarily follows such a finding; the eviction order must then be embodied in a decree drawn under Section 7(2) of the repealed Act for execution under the Civil Procedure Rules
  • The disappearance of a court file does not shut out a party who can produce authentic copies of pleadings and orders from the seat of justice
  • Failure to appeal a Tribunal award within 30 days of its adoption as judgment extinguishes any claim regarding the suit land

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The 1st and 2nd Appellants shall meet the Respondent's costs of this appeal and in the Court below

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Land Disputes Tribunal Act (repealed)Section 3(2)
  • Land Disputes Tribunal Act (repealed)Section 7
  • Land Disputes Tribunal Act (repealed)Section 7(2)
  • Land Disputes Tribunal Act (repealed)Section 8(1)
  • Land Disputes Tribunal Act (repealed)Section 8(9)
  • Environment and Land Court Act
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules

Cases cited (3)

  • Pius Mukabe Mulewa & Another v R
    C.A Criminal Appeal No. 103 of 2001
  • Peter Muiruri Kamau v Lee Mburu Boru
    High Court Civil Appeal No. 498 of 2002 (NBI) (2004 eKLR)
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (K) Ltd
    1989 KLR 1
On appeal from
Bungoma Chief Magistrate's Court
CMC LDT No. 70 of 2009
Jurisdiction invoked
Appeal against ruling of the subordinate court; leave to appeal granted by Muchemi J on 15th April 2010

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, "Mathew Wanyonyi & 2 others v Shaddy Kuloba Manyasi Respondent [2019] KEELC 3782 (KLR)", Case Analysis (2019). Bungoma High Court Appeal (from Bungoma CMC LDT No. 70 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3782/eng@2019-03-27

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