Simiyu v Simiyu (Environment and Land Appeal 41 of 2019) [2022] KEELC 3845 (KLR)
The bottom line
#The Bungoma Environment and Land Court dismissed an appeal against a Land Disputes Tribunal award, confirming that ignoring hearing notices forfeits your right to complain.
What this practically means
#Executive summary
#Key legal issues
#Service and notice of Tribunal hearings
Ground that the appellant was not served fails; the Tribunal recorded she was twice served and refused to attend, and absence of copies of summons does not disprove notice
The Tribunal's record showed the appellant was twice served and refused to attend, and was violent at the site visit. The court found the Tribunal members had no motive to fabricate the record. Tribunal proceedings are not stricto sensu civil proceedings, so any notification of the date and place of hearing suffices. The appellant also never raised non-service in her initial appeal, showing it was an afterthought.
Locus standi of the respondent before the Tribunal
Ground fails; the respondent, having purchased the plot from Damara Wamalwa, had the greatest claim and a right to appear and be heard
Locus standi means the right to appear in court or in a proceeding. The respondent purchased the 25 by 100 feet plot from Damara Wamalwa for Kshs 40,000 and his evidence was corroborated by witnesses. Nobody else had a greater claim to the plot, so it was preposterous to allege he lacked locus standi to seek the appellant's eviction.
Jurisdiction of the Tribunal over the dispute
The claim, hinging on trespass and a claim to occupy land, fell within section 3(1) of the repealed Act; registration of the land was irrelevant
Section 3(1) confers jurisdiction over disputes as to division or determination of boundaries of land, claims to occupy or work land, and trespass to land. The respondent's claim was against the appellant, essentially a trespasser, not against the registered proprietor. The caveat in Amunavi applies only to disputes relating to title to registered land; per the Kirinyaga case, registration did not matter here.
Natural justice and fair hearing (Article 50(1) and 47(1) of the Constitution; Ridge v Baldwin)
Ground fails; the appellant was given an opportunity to be heard and squandered it
While the right to a fair hearing is inalienable under Article 50(1), the record showed the appellant was served but stubbornly refused to attend and was violent at the site visit. Per Ridge v Baldwin and Union Insurance v Ramazan Abdul Dhanji, a party given a reasonable opportunity of being heard and not utilising it cannot complain. The appeal was academic since the respondent had since obtained a title deed.
Legal principles established
#- Tribunal proceedings under the Land Disputes Tribunal Act are not stricto sensu civil proceedings; notification of the date and place of hearing in any manner suffices
- Where a dispute falls within section 3(1) of the repealed Land Disputes Tribunal Act, it did not matter whether or not the land was registered under the Registered Land Act
- The right to be heard is not infinite; once a reasonable opportunity to be heard is given and not utilised, the party cannot complain of being heard in absence
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- Bungoma Chief Magistrate's Court (adopting the award of the Kanduyi Land Disputes Tribunal)
- Bungoma Chief Magistrate's Ldt Case No 46 of 2009
- Jurisdiction invoked
- Section 8(1) of the repealed Land Disputes Tribunal Act (appeal forwarded from the Kakamega Provincial Appeals Committee to this Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiyu v Simiyu (Environment and Land Appeal 41 of 2019) [2022] KEELC 3845 (KLR)", Case Analysis (2022). Not stated in the judgment (Tribunal appeal forwarded vide letter dated August 6, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3845/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.