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ELCAllowedNotice of Motion dated 4th November 2019 (ELC, Thika)· [2020] KEELC 2170 (KLR)

Solomon Mburu Njau & another v Eunice Wanjiru Mburu [2020] KEELC 2170 (KLR)

Environment and Land Court
15 June 2020
2,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land appeal stuck since 2010 because tribunals were abolished was still alive, and Kenya's Environment and Land Court took it over.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Thika by Notice of Motion dated 4th November 2019 seeking transfer to the ELC of their pending Central Provincial Appeals Committee Appeal No. 4 of 2010, and a stay of proceedings in Githunguri Tribunal Case No. 4 of 2010 in which the Respondent sought to restrain them from using Githunguri/Githunguri/2214. The dispute arose from an award of the Githunguri Land Disputes Tribunal made on 22nd October 2010, which purported to cancel the Applicants' titles to Githunguri/Githunguri/2214 and Sipili/Ndonyoloip Block 2/4408 and redistribute the parcels. The Applicants appealed to the Central Provincial Appeals Committee, which issued status quo orders, but the appeal was never heard because the Land Disputes Act No. 18 of 1990 was repealed by Section 31(b) of the Environment and Land Court Act, 2011. The Respondent opposed, citing inordinate delay, laches, and the Applicants' failure to demonstrate the appeal still existed. The Court framed two issues: transfer of the appeal, and stay of the subordinate court proceedings. It held the appeal had never been dismissed and could not die a natural death, noting the Respondent's authorities on enlargement of time were inapplicable since the appeal was already filed. It further held that stay was merited because the appeal questioned the tribunal's jurisdiction and, jurisdiction being everything, adoption of the award before determination of that question would be an academic exercise. The Court allowed the application with costs in the cause.

Key legal issues

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01

Transfer of the pending appeal from the defunct Central Provincial Appeals Committee

Holding

The prayer for transfer was allowed; the delay of over 7 years did not extinguish the appeal since it was never dismissed and status quo orders remained in place.

Reasoning

The Land Disputes Act No. 18 of 1990 was repealed with effect from 30th August 2011 and ELC judges appointed on 1st October 2012, so the earliest time for transfer was 2012. The appeal was already filed, so the case law on enlargement of time to file appeals relied on by the Respondent did not apply. Since the appeal subsisted and status quo orders were in place, transfer was necessary to resolve the dispute.

p. 2
02

Stay of proceedings in the subordinate court seeking adoption of the tribunal award

Holding

Stay was granted because the appeal questions the tribunal's jurisdiction and adopting the award would render the appeal academic.

Reasoning

A status quo order from the Appeals Committee was already in place halting the proceedings. The appeal raised a cardinal question of law on whether the Land Disputes Tribunal had jurisdiction to deal with registered land. If proceedings continued and the award was adopted, and the tribunal was later found to lack jurisdiction, the exercise would be an academic one.

p. 3

Legal principles established

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  • An appeal pending before a defunct Land Disputes Appeals Committee cannot die a natural death merely due to delay; it must be transferred to the Environment and Land Court for hearing and determination.
  • Where the jurisdiction of the tribunal making an award is under appeal, the adoption proceedings must be stayed since jurisdiction is everything.

Court orders

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  1. 1.The appeal pending before the Central Provincial Appeals Committee at Nyeri (Central Provincial Appeals Committee Appeal No. 4 of 2010, Solomon Mburu & Elizabeth Wambui Mburu v Eunice Wanjiru Mburu) is transferred to the Environment and Land Court for hearing and determination
  2. 2.Stay of proceedings in Githunguri Tribunal Case No. 4 of 2010 (Eunice Wanjiru Mburu v Elizabeth Wambui Mburu) pending the hearing and determination of the Applicants' appeal
  3. 3.The Application dated 4th November 2019 is allowed with costs in the cause

Authorities

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Legislation

  • Land Disputes ActNo. 18 of 1990
  • Environment and Land Court ActSection 31(b); 2011
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Thomas Muthee & another v Nyaguthii Kaguthu
    [2015]
  • Chege Macharia v. Francis Kimani Kirimira
    (2015) eKLR
Jurisdiction invoked
Environment and Land Court Act, 2011 - transfer of pending appeals from the defunct Land Disputes Tribunals/Appeals Committees pursuant to the Chief Justice's directions

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, "Solomon Mburu Njau & another v Eunice Wanjiru Mburu [2020] KEELC 2170 (KLR)", Case Analysis (2020). Notice of Motion dated 4th November 2019 (ELC, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2170/eng@2020-06-15

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