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ELCStruck OutNot stated in judgment (appeal case no. 112 of 2011 before the Nyanza Appeals Committee)· [2024] KEELC 5910 (KLR)

Odul v Yuaya (Environment & Land Case 51 of 2021) [2024] KEELC 5910 (KLR)

Environment & Land Court
19 September 2024
AKA. Y. Koross
1,978 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment & Land Court struck out a five-year-late appeal against a Siaya land tribunal decision because that decision had already become a final court order.

What this practically means

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Executive summary

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This was an appeal transferred from the defunct Nyanza Land Disputes Appeals Committee to the Environment & Land Court at Siaya, arising from a decision of the defunct Siaya Land Disputes Tribunal of 8/3/2006 which dismissed the appellant's claim of illegal acquisition by the respondent of land parcels Kathieno B/694 and 695. The appellant raised six grounds, including lack of probate, denial of fair hearing, fraud, limitation, absence of a site visit, and failure to call village elders, and sought to have the tribunal's decision set aside. The respondent filed no submissions. The court first discarded grounds (a), (d), (e) and (f) and the submissions on fraud and kinship as new issues never pleaded or determined before the Siaya tribunal, relying on Kenya Hotels Ltd v Oriental Commercial Bank Ltd. On competency, the court held that under sections 7 and 8(1) of the repealed Land Disputes Tribunals Act, an appeal lay within 30 days, but the appellant lodged his appeal around 2011, roughly five years late and without extension of time. Worse, on 4/10/2011 the tribunal's decision had already been adopted as an order of the magistrate's court in the presence of both parties; that unchallenged order replaced the tribunal's decision, which ceased to exist as an independently challengeable decision. The appeal was therefore found incompetent, was struck out, and costs were awarded to the respondent, costs following the event.

Key legal issues

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01

Whether the appeal was competent

Holding

The appeal was incompetent: it was lodged about five years out of time without leave, and the tribunal's decision had already been adopted as a valid court order which remained unchallenged

Reasoning

Section 8(1) of the repealed Act allowed appeals to the Appeals Committee within 30 days. The decision was rendered on 8/3/2006 but the appeal was lodged around 2011, approximately five years late and without extension of time. Further, on 4/10/2011 the tribunal's decision was adopted as a court order in the presence of both parties; that valid order was never reviewed or set aside, rendering the appeal futile and incompetent.

p. 5
02

Whether new grounds raised on appeal could be entertained

Holding

Grounds (a), (d), (e) and (f) and the submissions on fraud and the appellant's relationship with Athunga were new issues never before the Siaya tribunal and were discarded

Reasoning

The court held that issues never pleaded, canvassed or raised before the Siaya tribunal could not be raised for the first time on appeal, and that a party is bound by the grounds in its memorandum of appeal. It relied on the Court of Appeal decision in Kenya Hotels Ltd v Oriental Commercial Bank Ltd in so holding.

p. 3

Legal principles established

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  • Once a tribunal's decision is adopted as a court order, it ceases to exist as an independent decision challengeable separately in an appeal
  • Once the 30-day window for appeal to the Land Disputes Appeal Committee lapses, the tribunal's decision is remitted to court and adopted as its judgment, capable of execution
  • A party is bound by the grounds in its memorandum of appeal and cannot introduce new grounds or issues in submissions which were never before the lower tribunal

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs awarded to the respondent

Authorities

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Legislation

  • Land Disputes Tribunals Act (repealed)Section 7
  • Land Disputes Tribunals Act (repealed)Section 8(1)
  • Environment & Land Court Act
  • Civil Procedure Act

Cases cited (7)

  • Francis Kimani Karimira v Chege Macharia
    [2022] eKLR
  • Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited)
    [2019] eKLR
  • Watt v Thomas
    [1947] AC, 484
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Benedict Obat & 3 others v Pius Onyango Obat
    [2021] eKLR
  • Alfred Sagero Omweri v Kennedy Omweri Ondieki
    [2020] eKLR
  • Republic v Chairman, Lands Disputes Tribunal Kirinyaga District & another Ex-parte Peter Maru Kariuki
    [2005] eKLR
On appeal from
Nyanza Land Disputes Appeals Committee (appeal from the Siaya Land Disputes Tribunal)
112 of 2011
Jurisdiction invoked
Environment & Land Court Act - jurisdiction over matters formerly handled by the repealed Land Disputes Tribunals Act (Chapter 303A), including undecided appeals before the defunct Provincial Appeals Committees

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, "Odul v Yuaya (Environment & Land Case 51 of 2021) [2024] KEELC 5910 (KLR)", Case Analysis (2024). Not stated in judgment (appeal case no. 112 of 2011 before the Nyanza Appeals Committee). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5910/eng@2024-09-19

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