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ELCDismissedRecord of Appeal filed 8/5/2017, arising from SRMCC 25 of 2007 – Kigumo· [2019] KEELC 4771 (KLR)

Margaret Wanjiku Kimani v Joseph Mukabi Gachengo [2019] KEELC 4771 (KLR)

Environment and Land Court
17 January 2019
JKJ. G. Kemei
4,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that once a Land Dispute Tribunal award becomes a court judgment, you cannot block its enforcement years later without first appealing or setting it aside properly.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Hon A. Ogonda RM delivered on 30/5/2014 in SRMCC 25 of 2007 (Kigumo), dismissing the Appellant's application to review and set aside a Notice to Show Cause and execution proceedings. The underlying decree arose from a Land Dispute Tribunal award confirmed as judgment of the Court on 28/9/2007, requiring the Appellant (objector/defendant) to refund Kshs 115,000 to the Respondent (plaintiff) in three instalments without stated timelines. An application by the Respondent to add payment timelines was dismissed on 23/2/2009, the Court holding it lacked jurisdiction to amend the tribunal award. Execution followed; the Appellant's application for review was dismissed by Hon Ogonda. On appeal, J. G. Kemei J framed four issues: whether the trial magistrate's decision could be set aside, whether a case for review was made out, whether there was error apparent on the record, and whether execution was a nullity. The Court accepted that the tribunal lacked jurisdiction over registered land and contract matters under s.3(1) of the Land Dispute Tribunal Act, but held that the Appellant, having failed to move the High Court to set aside the award and having participated in adoption and execution without objection, could not raise nullity as an afterthought. No error apparent on the face of the record or contradiction between the rulings of 23/2/2009 and 30/5/14 was established. A successful litigant is entitled to the fruits of judgment, and the decree remained unsatisfied. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial magistrate's ruling dismissing the application for review could be set aside

Holding

The ruling was properly made and disclosed no basis for interference on appeal

Reasoning

The trial magistrate considered her predecessor's orders, correctly found the LDT award had been adopted as judgment and never set aside, and that the defendant had not satisfied the decree nor demonstrated error apparent on the record. The decision was not based on misapprehension or irrelevant circumstances, so the appeal court would not disturb it.

p. 3
02

Whether the tribunal's lack of jurisdiction over registered land and contract matters, raised for the first time on appeal, rendered the award a nullity

Holding

Although the tribunal lacked jurisdiction under s.3(1) of the Land Dispute Tribunal Act, the Appellant failed to move the High Court to set aside the award and could not resist execution on that basis

Reasoning

The Court accepted that the tribunal had no jurisdiction over registered land or contract disputes, a matter reserved for the High Court and now the Environment and Land Court. However, the Appellant participated in adoption and execution without objection and never took proceedings to set aside the award; the plea of nullity was an afterthought and the decree cannot be deemed void absent a High Court declaration.

p. 3
03

Whether there was an error apparent on the face of the record or contradictory rulings justifying review under Order 45

Holding

No error apparent or contradiction existed between the rulings of 23/2/2009 and 30/5/14; grounds not raised at trial could not found review on appeal

Reasoning

The Court perused both rulings and found no disharmony: the 23/2/2009 ruling dismissed an application to add payment timelines for want of jurisdiction but left the award intact and enforceable. The alleged contradiction was not pleaded before the trial court and the grounds for review were premised on facts that do not exist.

p. 4
04

Whether the execution proceedings by Notice to Show Cause were a nullity

Holding

Execution was properly levied on a valid, unsatisfied decree

Reasoning

The decree arising from the adopted award had not been set aside or appealed against; the Appellant had not settled any part of the decretal sum and had participated in execution proceedings without objection. A successful litigant is entitled to the fruits of judgment and the Court rightfully declined to set aside the Notice to Show Cause.

p. 5

Legal principles established

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  • An appellate court will not lightly differ from findings of fact of a trial court and will only interfere where findings are based on no evidence or wrong principles
  • A court adopting a Land Dispute Tribunal award has no jurisdiction to amend, vary or set aside the award; an aggrieved party must appeal to the High Court or seek review
  • Where there is no appeal or order setting aside a decree, the court's orders remain binding and enforceable
  • A successful litigant is entitled to the fruits of his judgment
  • Review may only be granted where the error is self-evident and requires no elaborate argument

Court orders

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  1. 1.The appeal is dismissed with costs in favour of the Respondent
  2. 2.The ruling of Hon A. Ogonda delivered on 30/5/14 dismissing the Appellant's application dated 7/5/2010 is upheld
  3. 3.Orders accordingly on the allegation that the ruling of 23/2/2009 was incomplete, the complete handwritten ruling being on record

Authorities

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Legislation

  • Land Dispute Tribunal Act Cap 303A (now repealed)Section 7(1) and 7(2)
  • Land Dispute Tribunal Act Cap 303ASection 3(1)
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSections 3A and 1B
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (16)

  • Jabane v Olenja
    [1986] KLR 661
  • Ephantus Mwangi –Vs- Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni –Vs- Kenya Bus Services
    (1982-88) 1 KAR 870
  • Shah v Mbogo
    [1968] E.A. 93
  • The Owners of the Motor Vessel Lilian 'S' –Vs- Caltex Kenya Ltd
    (1989) KLR
  • Wanja Mwaniki vs. Chairman Gichugu D. Ldt & Another
    [2006] eKLR
  • Floriculture International Ltd v Central Kenya Ltd & 3 Others
    (1995) eKLR
  • Kenidia Assurance Co. Ltd v Otiende
    (1989) 2 KAR 162
  • Independent Electoral & Boundaries Commission & another v. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Kinyanjui Kamau v. George Kamau Njoroge
    Civil Appeal No 132 of 2005 [2015] eKLR
  • National Bank of Kenya Ltd –Vs- Ndungu Njau
    (CA) No 211/1996 UR
  • Rose Kaiza –Vs- Angelo Mpanju Kaiza
    2009
  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
  • Mbogo –Vs- Shah
    (1968) E.A. 93
  • Benjoh Amalgamated Limited & Another Vs KCB Limited
    [2014] eKLR
  • Stephen Boro Gitiha Vs Family Finance Building Society & 3 Others
    Civil Appeal Nairobi 263/2009
On appeal from
Senior Resident Magistrate's Court, Kigumo
SRMCC 25 of 2007 – Kigumo
Jurisdiction invoked
First appellate jurisdiction over the ruling of the Senior Resident Magistrate's Court in a Land Dispute Tribunal adoption matter; supervisory jurisdiction of the Environment and Land Court over tribunal orders referred to under the Constitution of 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, "Margaret Wanjiku Kimani v Joseph Mukabi Gachengo [2019] KEELC 4771 (KLR)", Case Analysis (2019). Record of Appeal filed 8/5/2017, arising from SRMCC 25 of 2007 – Kigumo. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4771/eng@2019-01-17

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