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ELCDismissedELC Appeal No. 9 of 2019· [2020] KEELC 2883 (KLR)

Edward Ngari Musa v Shadrack Nyaga Njeru [2020] KEELC 2883 (KLR)

Environment and Land Court
5 May 2020
7,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that enforcing a tribunal's land decision doesn't need an adjudication officer's consent, and dismissed the appeal with costs.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Chuka against the judgment of the Chief Magistrate's Court at Chuka in Civil Case No. 127 of 2014, in which the respondent (plaintiff) obtained eviction orders against the appellants (defendants) from portions of un-demarcated family/ancestral land in Kamwimbi adjudication section, Tharaka-Nithi County. The respondent's claim rested on a Land Disputes Tribunal verdict in case IGA/01/04, adopted as judgment in LDT Case No. 19 of 2004, which he enforced by fencing; the tribunal map was relied on to found the eviction claim. The appellants, including the 3rd defendant who filed this appeal, argued they occupied their own ancestral land, were strangers to the tribunal proceedings, and challenged the suit as incompetent for want of written consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act, the land still being under adjudication. The court held that the jurisdictional objection was not raised timeously in the lower court, and that in any event consent was not required for a suit whose purpose was to implement orders of a properly constituted tribunal. Finding the trial magistrate's judgment well-reasoned on a balance of probability, the court dismissed all seven grounds of appeal and awarded costs to the respondent. Judgment was delivered in open court on 5th May 2020 after postponement occasioned by the Covid-19 crisis.

Key legal issues

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01

Requirement of adjudication officer's consent under Section 30 of the Land Adjudication Act

Holding

The exemption applies to suits implementing tribunal orders; the lower court had full jurisdiction

Reasoning

Although Section 30 ordinarily bars civil proceedings concerning land in an adjudication section without written consent of the adjudication officer, the respondent's suit sought implementation of a Land Disputes Tribunal verdict already adopted as judgment. The adjudication officer was aware of the proceedings, and the purpose of the consent requirement is to avoid fettering the officer with unknown conflicting orders. Implementation of a tribunal order did not require consent.

p. 9
02

First appellate court's duty and sufficiency of the trial court's evaluation

Holding

The trial magistrate considered all pertinent issues and arrived at a well-reasoned judgment on a balance of probability; the appeal fails

Reasoning

As a first appellate court the judge was entitled to evaluate the evidence afresh but found the appellant robustly participated in the impugned proceedings and the trial court properly weighed the evidence. The sketch map and tribunal findings, together with the respondents' testimony, supported the conclusion that the appellants had not demonstrated encroachment claims meriting interference.

p. 9

Legal principles established

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  • Consent of the Land Adjudication Officer under Section 30 of the Land Adjudication Act is not required where a suit is meant to implement orders issued by a properly constituted tribunal or court
  • A jurisdictional objection should be raised timeously in the court first seized of the matter

Court orders

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  1. 1.Grounds 1 to 7 in the appeal are dismissed
  2. 2.Costs follow the event and are awarded to the respondent

Authorities

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Legislation

  • Land Adjudication ActSection 30
  • Evidence ActSection 107
  • Land Registration Act 2012Section 25
  • Civil Procedure ActSection 27
  • Land Disputes Tribunal Actnull

Cases cited (14)

  • Thomas Kinyori Hussein & 3 others v Mokha Mghanga & 2 others
    [2018] eKLR
  • Owners of Motor Vessel Lilias "S" vs Caltex Oil Kenya Limited
    (1989) KLR 1
  • Republic vs Karisa Chengo and 2 Others
    Petition No. 5 of 2017
  • Kenya Ports Authority versus Kusforn Kenya Limited
    (2009) 2EA 212
  • Kimani Muhoro v John Waiganjo Mbuthia & Mark Gituku Gichuhi
    [2013] eKLR
  • Dorcas Wangithi Nderi vs Samuel Kiburu Maina & Anor
    (2015) eKLR, Embu HCCA no 58 of 2013
  • Kanyugu Njogu vs. Daniel Kimani Maingi
    (2000) eKLR
  • Samson Kipkosgei Chepkong'a v Chepkonga Chebiego
    [2019] eKLR
  • Ochako Obinchu v Zachary Oyoti Nyamongo
    [2018] eKLR
  • Nakuru Industries Limited -vs- S S Mehta & Sons
    [2016] eKLR
  • Duncan Ndegwa v Kenya Pipeline
    HCC No. 2577 of 1990 (Nairobi)
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
  • Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant vs Ihururu Dairy Farmers Co-operative Society Ltd
    null
  • Orix (K) Limited vs Paul Kabeu & 2 others
    null
On appeal from
Chief Magistrate's Court at Chuka
Civil Case No. 127 of 2014
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC jurisdiction over land disputes

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, "Edward Ngari Musa v Shadrack Nyaga Njeru [2020] KEELC 2883 (KLR)", Case Analysis (2020). ELC Appeal No. 9 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2883/eng@2020-05-05

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