Kirop & 2 others v Chelanga & 2 others (Environment and Land Appeal 19 of 2020) [2024] KEELC 368 (KLR)
The bottom line
#A family's decades-long fight to reclaim church land failed because they could not prove their claims against documented evidence of payment.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over the dispute
The Tribunal had jurisdiction because the dispute concerned boundary and trespass to land, which are matters within section 3 of the Land Disputes Tribunal Act; there was no issue of ownership of land belonging to deceased persons.
Section 3 of the Land Disputes Tribunal Act confers jurisdiction over disputes as to division or determination of boundaries to land, claims to occupy or work land, and trespass to land. The dispute before the Tribunal was about the boundary of the church land, demarcated in the 1960s, and the 1st Appellant's fencing off of part of it constituted trespass. Ownership was not in issue since Chematia had been compensated and relocated.
Whether the Tribunal was properly constituted
The Tribunal was properly constituted with three members including a chairman, in compliance with section 4(2)(a) and (b) of the Act; the appellants failed to discharge the burden of proving the members were not gazetted.
Section 4(2) requires a chairman appointed by the District Commissioner plus either two or four elders from the gazetted panel. The proceedings showed three members, one of whom was chairman, satisfying the provision. The allegation that members were not gazetted was an assertion the appellants had to prove, for instance by producing the gazette notice for Marakwet District, which they did not do.
Compliance with the Land Disputes Tribunal Act in hearing and determining the dispute
There was compliance: three members heard the dispute, the majority signed the decision, the decision was sent to the magistrate's court for adoption under section 7, and parties had opportunity to ask questions under section 3(7).
Section 6 requires the chairman to preside and the majority decision to carry the day. Two members signed the decision on 16.6.2009 and one on 23.8.2009. The chairman forwarded the decision to the magistrate's court for adoption per section 7. The defect of one signatory not being a member who heard the dispute and differing dates of signing did not invalidate the majority decision, as it did not go to the root of the case.
Whether a written claim was filed before the Tribunal
A claim was filed; it was assigned Tribunal Case No. 19 of 2009, and the claim could not have been assigned a number had none been filed. There is no provision for hearing an oral complaint under the Act.
Sections 3(2) and 3(3) require claims to be presented in writing and numbered consecutively. The claim bore Tribunal Case No. 19 of 2009, the Appellants responded and were heard, indicating service of a claim. The incomplete record of appeal was the Appellants' own doing.
Locus standi of the Respondents and capacity of the Appellants to be sued
The Respondents, being from the local Marakwet community, were better placed to file the claim; registered trustees of AIC could not fit the informal tribunal set-up. The Appellants' lack of letters of administration was irrelevant since the complaint was against a trespasser.
The tribunal process was informal and guided by local customs, so local community members could file the claim. On capacity, the dispute concerned trespass and boundary interference by the 1st Appellant supported by his co-appellants, not a claim against the estate of Chematia, so administration of that estate was unnecessary.
Merits of the appeal against the Tribunal's factual findings
The appeal against the weight of evidence failed: there was evidence of payment to Chematia, his thumb-printed signature on handing over the land, meticulously kept records witnessed by the paramount chief, and the 1st Appellant's own admission of fencing off the church land after ex-communication.
The 2nd Appellant conceded in cross-examination that Chematia was compensated and relocated. The allegation that receipts were forgeries was unsupported by any evidence. Independent clan members brought in by the Tribunal confirmed the property belonged to the church. Litigation had to come to an end after decades in which no complaint was raised by those who sold the land.
Legal principles established
#- On a first appeal, the court's duty is to re-evaluate the evidence and reach its own conclusion while allowing for the fact that it did not see the witnesses testify
- A party alleging that tribunal members were not gazetted bears the burden of proving that allegation
- A defect in the signing of a tribunal award that does not go to the root of the case does not invalidate the decision of the majority
- The Land Disputes Tribunal procedure was meant to be informal and community members from the local community could file claims without being registered trustees of an institution
Court orders
#- 1.The Appellants' appeal is dismissed
- 2.Costs of the appeal awarded to the Respondents
- On appeal from
- Marakwet Land Disputes Tribunal (appeal filed before Rift Valley Provincial Appeals Committee, Appeal No. 27 of 2010, transferred to the Environment & Land Court)
- Tribunal Case No. 19 of 2009
- Jurisdiction invoked
- Transfer of pending appeals from the disbanded Provincial Appeals Committees under the repealed Land Disputes Tribunal Act to the Environment and Land Court for hearing and disposal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirop & 2 others v Chelanga & 2 others (Environment and Land Appeal 19 of 2020) [2024] KEELC 368 (KLR)", Case Analysis (2024). Appeal from Rift Valley Provincial Appeals Committee Appeal No. 27 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/368/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.