Benjamin Kavoo Nzingu v Rael Ndule Dominic & 3 others [2021] KEELC 1259 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a land dispute appeal can still be filed after a tribunal award is adopted, if the award was never properly served.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal to the Appeals Committee was statute barred
The appeal was filed within time because the Respondent only learnt of the Tribunal's award when it was adopted by the Magistrates' court on 30 January 2006.
The award was signed on 1 August 2005 but the record did not show when it was delivered. Rule 20 requires the Tribunal's determination to be served on the affected person; there is no requirement that it be read to the parties. There was no evidence of service or presence at delivery. Since the Tribunal did not comply with Rule 20, time under section 8(1) only began running when the Respondent learnt of the award at adoption.
Whether an appeal could be filed after the award was adopted as a judgment and decree of the Magistrates' court
Yes - adoption is merely a procedural requirement to give the award the force of law and does not extinguish the right of appeal to the Appeals Committee.
Section 7(2) requires the court to enter judgment in accordance with the Tribunal's decision, from which a decree issues and is enforceable under the Civil Procedure Act. The court held this adoption had nothing to do with any subsequent appeal; an appeal to the Appeals Committee is against the Tribunal's decision, not the Magistrate's order.
Whether the Appeals Committee properly conducted the appeal
Yes - the parties were sworn in, testified, were cross-examined by Committee members and were heard, so the Committee considered both the evidence before it and that adduced before the Tribunal.
Section 8(6)-(7) of the Act prescribes that the appellant begins and each party is given an opportunity to state its case before the Committee determines the appeal with reasons. The Committee's proceedings showed the parties were sworn and heard. There is no prescribed procedure beyond this, so the complaint about failure to record the Tribunal evidence failed.
Legal principles established
#- Unless the Tribunal complies with Rule 20 (service of its determination on the affected party), time for appeal under section 8(1) runs from when the aggrieved party learns of the award.
- Adoption of a Tribunal award by the Magistrates' court is a procedural step and does not bar an aggrieved party from appealing to the Appeals Committee.
- The court's mandate on appeal from a Provincial Appeals Committee is limited to issues of law; issues of customary law are deemed issues of fact.
Court orders
#- 1.The Appeal is dismissed with costs.
- On appeal from
- Eastern Provincial Appeals Committee
- Land Appeals Case No. 12 of 2006
- Jurisdiction invoked
- Section 8(9) of the Land Disputes Tribunal Act (No. 18 of 1990) (now repealed) - appeal to the High Court on a point of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Kavoo Nzingu v Rael Ndule Dominic & 3 others [2021] KEELC 1259 (KLR)", Case Analysis (2021). Appeal from Eastern Provincial Appeals Committee-Land Appeals Case No. 12 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1259/eng@2021-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.