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ELCPartially AllowedAppeal from Embu Provincial Appeals Committee Appeal No. 22 of 2008 (arising out of Makueni District Land Tribunal LDT No. 22 of 2007)· [2020] KEELC 2393 (KLR)

Stephen Kithuka Ndungwa v Ndambuki Veke Kyai & 2 others [2020] KEELC 2393 (KLR)

Environment and Land Court
28 May 2020
CMC. G. Mbogo
2,668 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a land appeals committee cannot dismiss an appeal without hearing both sides, and divided the disputed family land equally.

What this practically means

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Executive summary

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The Appellant, Stephen Kithuka Ndungwa, appealed to the Environment and Land Court against the decision of the Provincial Appeals Committee in Embu dismissing his Appeal No. 22 of 2008, which had challenged an award of the Makueni District Land Disputes Tribunal in LDT No. 22 of 2007 condemning him to pay Kshs 80,000/= in costs after the Tribunal found 14 ancestral portions (ng'undus) existed on land awarded to him. The dispute traced back to family land of a common ancestor, Ndavi, divided between the descendants of his sons Nthele and Mukala; a prior Tribunal claim (LDT 140 of 2006) had confirmed equal entitlement and a boundary, which was adopted and implemented as a court order. The Appeals Committee consolidated Appeal 22/2008 with Appeal 125/2007 but dismissed Appeal 22/2008 on the view that the appellant had appealed against non-parties, creating confusion. The Court held that the two appeals were never procedurally consolidated, that the parties to Appeal 22/2008 were proper, and that the Committee abdicated its statutory duty under section 8(7) of the LDT Act by dismissing the appeal without hearing it or considering its grounds. Since no hearing occurred, no final decision on facts existed and an appeal on a point of law lay under section 8(8). The Court found two conflicting Tribunal decisions of equal status and directed that the 14 ancestral portions be shared equally, their acreage curved out, and the balance of the land divided equally between the appellant and the 3rd respondent. The Appeals Committee's consolidated decision was set aside and substituted with the implemented award in LDT 140. No costs order was stated.

Key legal issues

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01

Whether the two appeals were properly consolidated

Holding

The two appeals were never procedurally consolidated; appeal 125/2007 proceeded without reference to the consolidation and the two appeals bear different judgment dates.

Reasoning

The Appeals Committee's ruling of 14/04/2008 stated an intention to bring the two cases together, but appeal 125/2007 was conducted on 25/03/2009 as if appeal 22/2008 did not exist, with no mention of consolidation. The differing judgment dates (25/03/2009 and 06/07/2011) demonstrated the absence of a procedural consolidation.

p. 3
02

Whether appeal 22/2008 was against non-parties

Holding

The appeal was proper; the parties named were those before the District Tribunal, contrary to the Appeals Committee's finding of confusion.

Reasoning

The judgment of the Appeals Committee correctly recorded the appellant as Stephen Kithukwa Ndungwa and the respondents as Ndambuku Veke Kyai and William Kyengo Sila, the same parties in LDT 22/2007. The Committee's complaint that the appellant had appealed against a person not in case 125/2007 conflated two separate files.

p. 4
03

Whether appeal 22/2008 was properly dismissed

Holding

No - the dismissal without hearing the grounds and without giving parties an opportunity to be heard was an error of law.

Reasoning

Section 8(7) of the LDT Act required the Committee, after giving each party an opportunity to state its case, to determine the appeal with reasons. The Committee dismissed the appeal without taking evidence or considering the grounds, abdicating its statutory duty. Since no hearing occurred, no final decision on facts existed, leaving a point of law open to the Court.

p. 4
04

How the conflicting Tribunal decisions and the 14 ancestral portions should be resolved

Holding

The 14 ancestral portions should be shared equally by both parties, with the balance of the suit land divided equally between the appellant and the 3rd respondent.

Reasoning

Two tribunals of the same status had issued conflicting findings - one found no ancestral shambas on the land, the other found 14 ancestral portions. Since the appellant and 3rd respondent represent the families of Nthele and Mukala respectively and are entitled to equal portions, the Court ordered the acreage of the 14 portions determined, curved out, and the remainder divided equally.

p. 5

Legal principles established

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  • An Appeals Committee under the LDT Act must give each party an opportunity to state its case and determine the appeal giving reasons; dismissal without doing so is an abdication of statutory duty and an error of law
  • The decision of an Appeals Committee is final only on issues of fact; where an appeal was never heard, there is no final decision on the factual issues and an appeal on a point of law lies
  • An appeal to an Appeals Committee can only be lodged by, and against, persons who were parties to the Tribunal proceedings under section 8(1) of the LDT Act

Court orders

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  1. 1.The judgment/ruling/award of the Appeals Committee in case No. 125 of 2008 as consolidated with Appeal No. 22 of 2008 is set aside
  2. 2.The set-aside decision is substituted with the award of Makueni District Land Disputes Tribunal in claim No. 140 of 2007 as implemented on 11th April, 2011

Authorities

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Legislation

  • Land Disputes Tribunal Act (now repealed)section 8(1)
  • Land Disputes Tribunal Act (now repealed)section 8(7)
  • Land Disputes Tribunal Act (now repealed)section 8(8)
  • Land Disputes Tribunal Act (now repealed)section 8(9)
  • Environment and Land Court Actsection 13(1), (2)(a)-(d), (4)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (1)

  • Misc. Civil Application No. 229 of 2011
On appeal from
Provincial Appeals Committee, Embu
Appeal No. 22 of 2008 (consolidated with Appeal No. 125 of 2007)
Jurisdiction invoked
Section 8(8) of the Land Disputes Tribunal Act (appeal to the High Court on a point of law) read with section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution

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, "Stephen Kithuka Ndungwa v Ndambuki Veke Kyai & 2 others [2020] KEELC 2393 (KLR)", Case Analysis (2020). Appeal from Embu Provincial Appeals Committee Appeal No. 22 of 2008 (arising out of Makueni District Land Tribunal LDT No. 22 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2393/eng@2020-05-28

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