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ELCAllowedKitale High Court Appeal (Memorandum of Appeal dated 18/6/2001)· [2019] KEELC 4979 (KLR)

Kajolitum Lokoulem v Thomas R Chelimai [2019] KEELC 4979 (KLR)

High Court of Kenya
28 January 2019
1,024 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 Kitale threw out a 2001 land eviction judgment because the magistrate's court had no legal power to hear the case after Kenya's Land Disputes Tribunals Act took effect.

What this practically means

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Executive summary

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This is a first appeal decided by the High Court at Kitale (Mwangi Njoroge, J) against the judgment of the magistrate's court dated 10/4/2001 in Kitale SPMCC Civil Suit No. 38 of 1992, in which the respondent, as plaintiff, had sought eviction of the appellant from parcel W.Pokot/Siyoi/530. The appellant raised two grounds: that the trial court lacked jurisdiction in view of the Land Disputes Tribunals Act No. 18 of 1990, and that the magistrate's findings were against the weight of the evidence. The court noted the suit was filed on 3/2/1992, before the Act came into operation on 1/7/1993 (Legal Notice No. 91 of 30/4/1993), but that the High Court, in the respondent's first appeal, ordered the lower court on 28/4/1994 to vacate its decree and judgment and take further evidence, after which the magistrate delivered the impugned judgment on 10/4/2001. Holding that jurisdiction is conferred by statute and cannot be assumed, and that under s 13(1) of the Act the vacated proceedings were deemed pending and the magistrate was barred from continuing, the court found the order of the High Court could not override the express statutory bar. Although by the time of hearing the Act itself had been repealed, the court held a judgment rendered through proceedings illegal on their face could not stand. The appeal was allowed, the judgment of 10/4/2001 set aside, and the respondent ordered to pay the costs of the appeal and of the suit in the trial court.

Key legal issues

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01

Jurisdiction of the magistrate's court after commencement of the Land Disputes Tribunals Act

Holding

The respondent's claim fell within the jurisdiction of the Land Disputes Tribunal under s 3(1) of the Act, which repealed the Magistrates' Jurisdiction (Amendment) Act of 1981, so the trial court lacked jurisdiction.

Reasoning

The Act came into operation on 1/7/1993 by Legal Notice No. 91 of 30/4/1993. The claim fell squarely within s 3(1) of the Act. After the High Court ordered the lower court to vacate its decree and judgment, the proceedings were deemed pending within s 13(1), barring the magistrate from proceeding. A court order could not override the express statutory bar to confer jurisdiction.

p. 2
02

Effect of the vacated judgment and remedy for proceedings tainted by illegality

Holding

A judgment arrived at through proceedings illegal on their face must be set aside regardless of whether a retrial would reach the same result.

Reasoning

The court held that whether the magistrate's court on rehearing would arrive at the same decision does not matter; what matters is that a judgment rendered through proceedings illegal on their face is gone, and untainted proceedings will henceforth be pursued. The appeal therefore succeeded on the jurisdiction ground, making the weight-of-evidence ground unnecessary to resolve.

p. 2

Legal principles established

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  • Jurisdiction is conferred by statute and cannot be assumed; a court order cannot override an express statutory provision to confer jurisdiction.
  • Where proceedings before a magistrate's court had not proceeded to judgment when the Land Disputes Tribunals Act commenced, they were barred from continuing before the magistrate's court.

Court orders

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  1. 1.That this appeal is hereby allowed
  2. 2.That the judgment of the magistrate's court dated 10/4/2001 in Kitale SPMCC Civil Suit No. 38 of 1992 is hereby set aside
  3. 3.That the respondent shall meet the costs of the appeal and the costs of the suit in the trial court below
On appeal from
Magistrate's Court, Kitale (SPMCC)
Civil Suit No. 38 of 1992
Jurisdiction invoked
Appellate jurisdiction of the High Court over appeals from the magistrate's court; dispute governed by the Land Disputes Tribunals Act No. 18 of 1990, s 3(1) and s 13(1)

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, "Kajolitum Lokoulem v Thomas R Chelimai [2019] KEELC 4979 (KLR)", Case Analysis (2019). Kitale High Court Appeal (Memorandum of Appeal dated 18/6/2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4979/eng@2019-01-28

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