Thebe v Charo & 4 others (Environment and Land Petition E016 of 2024) [2026] KEELC 1102 (KLR)

of the unsurveyed piece of land measuring approximately 70 acres situated at Kibao Kiche, having inherited the same from his ancestors (hereinafter referred to as “the suit property”). His ancestors had tilled the suit land for ages and planted perennial fruit trees thereon for both subsistence and commercial use. In 1999 Karisa Charo Nyamawi instituted a claim against the petitioner's family at the Kaloleni Land Disputes Tribunal claiming that the suit land was his ancestral land and sought to have the boundary reestablished in a manner that would lead to the eviction of the petitioner's family. 3. The Tribunal heard the case and delivered its decision on 19th August 1999 awarding the land to Karisa and the decision was adopted as a judgement of the Court by the Kaloleni Resident Magistrate’ s court in Land Award Number 39 Of 1999. 4. Dissatisfied, the petitioner commenced an appeal procedure under the repealed Land Dispute Tribunal Act Number 18 Of 1990 which process was delayed due to the challenges in obtaining the typed records from the Kaloleni Land Disputes Tribunal and transmission of the same to the Provincial Disputes Appeals Committee at Mombasa. 5. Subsequently the petitioner was granted leave to appeal and his appeal was admitted to that Appeals Committee as Land Appeal Number 71 Of 2008. 6. Hearing of the appeal began on 16th December 2008 and was adjourned to enable parties arrange for a site visit. 7. While the parties were waiting for the site visit, the Land Disputes Tribunal Act Number 18 Of 1990 was repealed and the appeal was required to have been transmitted to the Environment and Land Court for hearing and disposal 8. On 2nd December,2013, the Deputy Registrar Environment and Land Court issued directions to have all files that were pending before the Provincial Land Disputes Appeals Committee to be forwarded to the ELC. 9. On 21st August 2014, the Mombasa Court issued a letter transferring the appeal to Kaloleni Magistrate’s Court where it was registered as Kaloleni Land Case Number 32 Of 2014. Karisa filed a Preliminary Objection against the appeal which objection was upheld and the appeal at Kaloleni Magistrate’ s Court was struck out. 10. After that the petitioner filed an application before this court Malindi ELC Miscellaneous Application Number 6 Of 2024 seeking transfer of Provincial Land Appeals Committee Appeal Number 71 Of 2008 to be transferred to this court which application was struck out. 11. The petitioner’ s case is that it was the obligation of the Provincial Land Disputes Appeals Committee Coast and the Environment and Land Court to have the appeal transferred to the ELC and the petitioner should not be punished for failure to have his appeal transferred. The petitioner was also not in a position to progress or prosecute his appeal without first being notified by the court that the appeal had been transferred and as such the petitioner was left in limbo; that the ELC was supposed to continue hearing appeals from the Tribunals subject to any directions by the Chief Justice or the Chief Registrar; that the actions or lack of action on the part of the defunct Land Disputes Tribunal and the successor thereto amount to violation of the petitioner’s constitutional rights and threatens to further prejudice and infringe on the petitioner’ rights unless this court intervenes; that the transition from the repealed Land Disputes Tribunal Act to the Environment And Land Court and/or the lack of it denied him his fundamental right to pursue his appeal, which right ought to be upheld by this court; that the haphazard repeal of the Land Disputes Tribunals Act without providing a clear transition of appeals pending within the Coast region prejudiced the petitioner and denied him his right to access to justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1102/eng@2026-02-24 2

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12. The petitioner avers that courts and judicial bodies, in discharging their lawful mandate, are bound by Article 10 of the Constitution to observe the rule of law assert equality and protect human rights. 13. The petitioner requests this court to return a finding that the failure on the part of the responsible ofices to transmit the petitioner’s appeal from the Land Disputes Tribunal to this court amounted to a violation and infringement of the petitioner’s right to fair trial and that the order that commends itself in the circumstances would be a directive that the petitioner’s appeal be admitted out of time, noting that the proceedings under the Land Disputes Tribunal’s Act were not bound by strict procedural technicalities under the Civil Procedure Act including the rules on the death of a party, and the inclusion of the first deceased’s children in proceedings touching on the dispute at hand would sufice; that the continued delay in the conclusion of the ownership disputes prevented the completion of the land adjudication and registration process over the suit land thereby prejudicing the petitioner. The petitioner avers that while he was waiting for his appeal to be forwarded to this court, the Jimba/ Kaliangombe Land Adjudication Committee made an irregular decision awarding his land to Karisa Charo Nyamawi, the deceased. 14. As I read through the court file to prepare this ruling, I checked the CTS records and confirmed that I gave the ruling in Thebe v Charo & 2 others (Sued on their own behalf and/or legal representatives and/ or administrators of the estate of the late Karisa Charo Nyamawi) [2024] KEELC 5671 (KLR) on 31st July 2024. That matter relates to the same land and the same parties herein. 15. In efiect, this is the second time that I would be sitting in respect of this dispute, albeit in a petition. This is a fact that has come to me quite late in the day for the reason that the names of the parties hearing did not for some reason automatically ring a bell earlier. Counsel appearing also never informed this court that the earlier dispute was presided over by myself, otherwise I should have issued appropriate directions at the right time. I now find that it is improper that I hear and determine the present petition. In the circumstances the date for judgment scheduled for 24th February 2026 is hereby vacated and parties or counsel are ordered to appear in court on 11/6/2026 for further directions to be made in their presence before a difierent court. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 24TH FEBRUARY 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1102/eng@2026-02-24 3

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