Dennis Okwara v John Mabonga Mupalia [2014] KEHC 6539 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

HIGH COURT CIVIL APPEAL NO. 3 OF 2010.

DENNIS  OKWARA ……………………………………….APPELLANT

VERSUS

JOHN  MABONGA MUPALIA…………………………..RESPONDENT

J U D G M E N T.

The Appellant , DENNIS OKWARA, through  M/S. Bogonko, Otanga & company Advocate, filed  this appeal on 22. 02. 2010 against John Mabonga Mubalia, the Respondent, over the decision  of Western Provincial Land Disputes Appeals  Committee in Case No. 22 of 2005 adopted in Busia Principal Magistrate’s Court  Land case Number 26 of 2004  on 04. 02. 2010.  The Appellant has set out three grounds in the memorandum of Appeal summarized as follows;-

1.   That  the Appeals Committee erred in law in affirming the decision of Nambale Land  Dispute Tribunal  which had issued specific performance  orders in respect of an agreement made in 1987 as no consent  had been obtained as required under section 6 of Land Control Board Act, Chapter 302  of Laws of Kenya.

2.   That the  Appeals Committee erred in law in upholding the specific performance orders of  the 1987 agreement  by the Nambale Land Dispute Tribunal as  the Tribunal lacked jurisdiction in view of the section 3 (1)  of the Land Disputes  Tribunal Act (Now repealed).

3.   That the Appeals Committee erred in law in upholding the decision of the Nambale Land Disputes Tribunal over a claim to recover land after 17 years from the date the cause of action arose.

The Respondent’s counsel, Ouma Okutta & Associates filed notice of appointment of advocates on 9. 05. 2013. On 7. 10. 2013 both counsel consented to proceed with the appeal by  filing written submissions. The Appellant’s submissions were filed on 29. 10. 2013 while that of the Respondent were filed on 5. 11. 2013.

THE  CASE BACKGROUND:

1.   In 1987 the Appellant entered into a Land Sale agreement with the Respondent  in which the Appellant was to sell the Respondent Bukhayo/Busibwabo/792  measuring  six acres  at Kshs.25,000/=.

2.   The Respondent  paid a deposit of Kshs.8,000/= to the Appellant.

3.   In 2004, the Respondent filed Land case No. 18 of 2004 against  the Appellant at the Nambale  Land Disputes Tribunal  claiming the land subject matter of the 1987 agreement. During the hearing before the  Tribunal,  the Respondent  claimed to have paid  Kshs.17,000/= being the balance of the purchase price to Peter Kundu,  a brother-in-law  to the Appellant, but the Appellant  denied  having received the balance.

4.   The Tribunal  after considering the evidence  availed before it ruled that the Respondent pays the balance of Kshs.17,000/= to  the Appellant after which  the latter do transfer  Bukhayo/Busibwabo/792  to the former.

5.   The  Appellant was not satisfied  and filed appeal case No. 22 of 2005 with Western Provincial  Land Dispute Appeals Committee raising five grounds of jurisdiction, claim being  statute barred, failure to make full payment, absence of Land Control Board consent and  failure to  provide for interest on the outstanding balance.

6.   The record from the Appeals Tribunal shows the appeal did not take off on the first two days fixed due to absence of the Appellant.  On the third hearing date, the committee proceeded with the hearing of the appeal in the absence of the Appellant who though served, had not attended.

7.   During the hearing before the Appeals Committee the respondent disclosed  that following the sale agreement of 1987, he made the payment of the purchase price in installments completing in 1988. That he lived on that land he bought from 1987 to 1997.  That following the Nambale Land Disputes Tribunal award in 2004 he deposited the Kshs.17,000/=, being  the balance due  to the Appellant, with Busia Law Courts. The Respondent finally asked the Appeals Committee to assist him get his land and dismiss the appeal with costs.

8.   The Appeals Committee after considering the Nambale Land Disputes Tribunal findings and the Respondent’s submission made  the following verdict.;

‘’1. )     The appeal  is dismissed  with costs.

2)      The Land parcel No. Bukhayo/Busibwabo/792  of 1. 8  Ha is awarded to John Mabonga Mupalia.

3)      The Land title deed fro parcel Bukhayo/Busibwabo/792 registered under the Appellant, Dennis Okwara Ekesa, be  cancelled by the Land Registrar  and a new title  for the same land parcel  be issued in the names of John Mabonga Mupalia.

4)      The Appellant, Dennis Okwara should collect his 17,000/= shillings as awarded by the Nambale Land Disputes Tribunal  Court which  objector confirmed  was deposited  with the Busia law Court for his collection.

5. )     The parties to keep peace.’’

The Appeals Committee award was read and adopted by the Lower Court on 04. 02. 2010 in Busia PMC. Land Case No. 26 of 2004.

This being a second appeal, this court is only concerned with issues of law.

APPELLANT’S SUBMISSIONS.

1.   That  the 1987 Land Sale  agreement between Appellant  and  Respondent  had become null and void as no consent from land Control Board  was obtained within six  months of the agreement or at all.  Refer to section 6 and 8 of Land Control Act, Chapter 302 of Laws of Kenya.  That enforcement on Land Sale agreement  is outside the powers of Land Disputes Tribunals whose jurisdiction was limited under section 3 (1)  of the Land Disputes  Tribunal  Act (Now repealed). The Appellant’s  counsel referred the court to the following  two Court of Appeal decisions:

a)   KISUMU C.A.C. A NO. 157 of 2001.  Asman Maloba, Wepukhulu & Anor –v- Francis Wakwabubi Biket where the court upheld the High court decision quashing an award  by Misikhu Land Disputes Tribunal for acting illegally  in determining issues  relating to land which was outside their jurisdiction.

b)   Nyeri C.A.C.A. NO. 133 of 1987. Nelson  Githinji & Anor –vs- Munene Irangi in which the court of Appeal set aside the High court order dismissing  the application to set aside an arbitral award of specific performance where consent from the Land  Control Board had not been obtained.

2.   That the  Respondent  could have filed a suit against Appellant on specific performance within six  years from 1987 subject to having obtained Land Control Board Consent. That  the Respondent’s  claim was filed after  17 years and was therefore statutory barred.

3.   The Appellant prays for the appeal to be allowed and set aside Nambale Land Disputes Tribunal decision in case number 18 of 2004, affirmed by the Western Province Land Disputes Appeals Committee in case number 22 of 2005 and adopted in Busia  PMC. Land Case number  26 of 2004 with costs.

RESPONDENT’S  SUBMISSIONS.

1.   That the Appellant’s  appeal before the Western Province Appeals Committee was  dismissed for want of prosecution after  Appellant failed to appeal before the tribunal.  That  the Appellant ought to have applied for a reinstatement of his appeal before the Appeals  Committee and it was only after a decision on merit is made that he could have come to  this court on matters of law.

2.   That the Appellant’s  appeal is improperly before  this court and an abuse of due process.

3.   That  the court lacks  jurisdiction to entertain this appeal and should award costs to the Respondent.

QUESTIONS OF LAW FOR DETERMINATION.

1.   Whether the parties land sale agreement of 1987 was  a controlled transaction and if so whether consent was obtained as required under section 8 of  land Control Act Chapter  302  of Laws of Kenya.

2.   Whether  the Respondent’s claim was statutory  time barred by the time he  filed it before Nambale  Land Disputes Tribunal.

3.   Whether the Nambale Land Disputes Tribunal had jurisdiction  to entertain the Respondent’s  claim in view of the provision of Section 3 (1)  of Land Disputes Tribunal Act (Now repealed).

4.   Whether this appeal is properly before this court in view of the fact that the Appellant did  not appear before  the Appeals Committee to prosecute  his appeal.

5.   Whether this court has jurisdiction to determine this appeal.

FINDINGS.

1.   The parties’ Land Sale agreement of 1987 was over agricultural land  (Bukhayo/Busibwabo/792) and therefore subject to Land Control  Board Consent being obtained in terms of section 6 and 8 of  the Land Control Act, Cap 302  of L.O.K.  That no evidence was tendered before the Tribunal or the Appeals Committee of the Land Control Board consent  to the transaction having been obtained within the six  months from the date of the sale agreement or at all.  The failure to have obtained the Land Control Board Consent made the sale agreement void and specific performance orders could not issue to

enforce the agreement.  However the purchase price paid would be recoverable in terms of section 7 of the Land Control Act, Chapter 302 of L.O.K. The Appellant succeeds on this ground.

2.    The sale agreement was entered into in 1987 and any court action seeking to enforce it needed to be filed within six years in terms of section 4 (1)  (a) of the Limitation  of Actions Act Cap 22 of L.O.K. The  Respondent made the reference to the Nambale Land Disputes  Tribunal in the year, 2004 which is about 17 years  from the year of the contract.  No  leave to file the matter out of time had been obtained prior to the filing of the matter.  The matter was therefore  clearly statutory time barred by the time the Respondent filed  Nambale Land Dispute Tribunal case No.18 of 2004.  This fact was overlooked or not considered by the Western  Province  Land Disputes  Appeals  Committee when they rendered  their decision in case No. 22 of 2005. On this ground also , the appeal succeeds on this grounds.

3.   The claim  the Respondent took before  the Nambale land Disputes  Tribunal in case No. 18 of 2004  was summarized  in the heading of the proceedings as ‘’ a claim to occupy’’ land.  The  evidence he gave to  the Tribunal shows clearly that his claim was the six acres of Land Bukhayo/Busibwabo/792 bought  from the Appellant  at Kshs.25,000/= in 1987.  The Tribunal’s order  was that Respondent pays  Kshs.17,000/= outstanding to Appellant, after which the Appellant was to transfer the land to him.  Even though  the claim in the heading had shown Respondent was after a right to occupy Land, the evidence adduced and the tribunal order had nothing to do with a claim to occupy the land.  The evidence and the order  shows the claim was one for ownership of  land arising  from a sale agreement.  This was a claim that was clearly outside the powers granted to the Tribunal  under section 3 (1) of the then  Land Disputes Tribunal Act.   The Court of Appeal decision in Asman Maloba Wepukhulu & Anor –V- Francis  Wakwabi Biketi, Kisumu  C.A. No. 157 of 2001 is relevant.  The Appellant had raised the issue of the Tribunal’s  jurisdiction in his  memorandum  to the Appeals Committee in grounds 1, 2 and 4 and the Appeals Committee was obliged to make a finding when making their decision after hearing the Respondent exparte.  The  record of Appeals Committee do not contain any finding on grounds 1, 2,  and 4 of the Memorandum  of appeal. This  was a serious omission as those grounds raised issues  of law that needed the Appeals Committee to make a finding on. This ground  is also proved.

4.   On the issue  of jurisdiction, section 8 (9) of the Land Disputes  Tribunal Act (Now repealed),  clearly shows that appeals to this court, being  second appeals, are only on issues of Law. The Appellant had filed the first appeal before the Western  Province Land Disputes Appeals Committee in case Number  22 of 2005.  The copy of the proceedings annexed  to the appeal record shows the Appellant did not attend the hearing of  the appeal.  However the appeal was not dismissed for want of prosecution as the Respondent was heard by the Appeals Committee.  The Appeals Committee considered what Appellant had presented before them when filing the appeal, the  tribunal’s  proceedings and the Respondent’s  submissions  in coming up  with the orders subject matter of this appeal.

In any case, even if the Appeals Committee had only ordered that the appeal to be dismissed  for want  of prosecution, the Appellant would still have had to come to this court after the repeal of the Land Disputes Tribunal Act which sounded the death of the Land Disputes Tribunals and Appeals Committees. The matters  pending  before the tribunals and Appeals Committee were to be  handed by the  appropriate  courts in accordance with Chief Justice practice direction and therefore this court has jurisdiction to hear and determine this appeal.

R U L I N G.

For reasons shown above, the appeal has merit and is hereby allowed in terms  of prayers (a) to (c).

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 12th DAY OF  March, 2014

IN THE PRESENCE OF; - Applicant, Mr. Otanga for Appellant  and Mr. Okuta for resppndent.

JUDGE.