Johnstone Nyaga Namu v Felix Njagi Samuel [2014] KEHC 3618 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELCA  CASE  NO. 86 OF 2013

JOHNSTONE NYAGA NAMU ………………………………………………………… APPELLANT

VERSUS

FELIX   NJAGI SAMUEL ……………………………………………………………….. RESPONDENT

ORDER

On 23rd April 2002, the Resident Magistrate Siakago Court entered judgment in favour of JOHNSTONE NYAGA NAMU following a land dispute heard by the  Mbeere Land Dispute  Tribunal.   Under the now repealed Land Disputes Tribunal Act, any aggrieved party had 30 days within which to appeal to the Appeals Committee.

An appeal was filed to the Provincial Land Dispute Appeal which delivered a ruling on 23rd  March 2009 dismissing the appeal.

Under Section 8 (9) of the said Land Dispute Tribunal Act, any aggrieved party had 60 days to appeal to the High Court on points of law.   It would appear from the record that after the Appeals Committee rendered its decision on 23rd March 2009, the parties nonetheless appeared before the Senior Resident Magistrate Mr. S.M. Mokua on 11th June 2009 when the decision of the Appeals Committee was again read to the parties.  That was unnecessary because once the award of the Tribunal was read to the parties on 23rd April 2002, and judgment entered in terms of the award, the trial magistrate became functus officio and the only option left to an aggrieved party was to file an appeal to the Appeals Committee as provided under Section 8 (1) of the Land Disputes Tribunal Act. That appeal was filed but as I have indicated above, the same was dismissed on 23rd March 2009.  Any appeal therefrom ought to have been filed within 60 days but the appeal herein was filed on 22nd July 2009 long after the 60 days provided for under Section 8 (9) of the Land Dispute Tribunal Act.   The 60 days period commenced on 23rd  March 2009 and not 11th June 2009 when Mr. Mokua purpoted to read the award from the Appeals Committee.  That action was superfluous because there is no requirement under the then Land Disputes Tribunal Act for a Court to again read to the parties the award of the Appeals Committee which is infact final subject only to appeals to this Court on points of law within 60 days.   And as I have already stated, the decision being appealed from having been filed after 60 days, it was well beyond the time provided for in law during which an appeal may be filed.

When the appeal was placed before Ong’udi  J. in  Embu High Court on 24th September 2013 for orders on admission or rejection of the appeal,  the Judge did not make any orders and instead transferred the file to this Court.

It is clear in my mind that had the Judge perused the file and addressed her mind to the issues that I have noted above, she would have rejected the appeal.  Since no orders have been made pursuant to the provisions of Section 79 B  of the Civil Procedure Act, I hereby make those orders rejecting the appeal.   The Deputy Registrar to inform the parties accordingly.

B.N. OLAO

JUDGE

8TH JULY, 2014