ANTHONY KARIMI MURIGU & ESTHER WAMBUI v MAGONDU KAMANDA [2011] KEHC 3282 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 103 OF 2008

ANTHONY KARIMI MURIGU)

ESTHER WAMBUI)……………………APPELLANTS

VERSUS

MAGONDU KAMANDA…………………………………RESPONDENT

R U L I N G

The genesis of this matter has been very clearly set out by counsel for the Appellant in his written submission. I will nonetheless very briefly revisit the same.

Esther Wambui and Anthony Karimi the Appellants herein filed a claim before the Central Division Land Disputes Tribunal in Kerugoya. The dispute was heard and an award was filed in the subordinate court as provided for under the Land Disputes Tribunal Act. The same was adopted as  Judgment of the court by the magistrate pursuant to section 7(2) of the said Act. The learned trial magistrate intimated in his proceedings that he had given the parties 30 days right of Appeal. That right is nonetheless conferred by statute.

Being aggrieved by the contents of the said judgment, the Respondent herein moved to this court by way of Judicial Review which was all in order. I may point out here that at that point, the dissatisfied party has 2 options: Either move the High court by way of Judicial Review or move to the Provincial Land Disputes Tribunal within the stipulated 30 days.

A party however who opts to move the High Court for Judicial Review Orders forfeits the other option to move to the Provincial Appeals Tribunal on Appeal. One cannot do both. It is like filing an Appeal against a conviction and then filing for Revision orders. The law does not allow one to do both.

Even without going further, it is clear that whatever the outcome of the Judicial Review proceedings was, the door to move to the Provincial Disputes Tribunal was firmly and permanently shut and it could not be re-opened. The only recourse the aggrieved party had was to move to the Court of Appeal to challenge the High Court Orders. It is like water flowing through a sluice. It can only move ahead and never backwards.

The respondent’s act was a futile attempt to challenge the High court orders through the Provincial Land Disputes Tribunal. That clearly offends the land and procedure. I have carefully read the submissions by both counsel herein. From my foregoing analysis it is clear that the magistrate had no jurisdiction whatsoever to entertain the application for extension of time while the matter had already been conclusively determined by the High Court. In my considered view also, the Land Disputes Tribunal Act is a self sufficient Act which provides its own rules of procedure including the right of Appeal.

Unless such other procedures or rules are expressly incorporated in the Act, then they cannot be invoked by the court. The learned magistrate had no jurisdiction whatsoever to grant the Appellant   extension of time within which to file an Appeal to the Provincial Appeals Tribunal. This Appeal has merit and it must succeed on the points of law discussed above. In the circumstances, the same is allowed with costs to the Appellant. The orders of the learned magistrate dated 6. 10. 08 are bad in law. The same is set aside and in their place thereof, I make an order dismissing the Respondent’s Application dated 9. 6.2008. I so order.

W. KARANJA

JUDGE

SIGNED BY THE ABOVE BUT DELIVERED AND DATED AT EMBU THIS 15TH DAY OF MARCH, 2011.

M. WARSAME

JUDGE