Philip Kamangu Gatiu & James Karanja Ngonya v Mary Wanjiku Wamutu [2019] KEELC 1943 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC. APPEAL NO. 10 OF 2018

PHILIP KAMANGU GATIU ..........................................1ST APPELANT

JAMES KARANJA NGONYA.....................................2ND APPELLANT

VERSUS

MARY WANJIKU WAMUTU..........................................RESPONDENT

(Being an Appeal from the decision of the Thika Land Disputes Tribunal made on 27th May, 2009 and adopted by the Thika Chief Magistrate’s Court on 22nd September, 2009 in Misc. Suit No. D.O 39 of 2009)

JUDGMENT

1. In the Memorandum of Appeal dated 24th August, 2015 and filed on 25th August, 2015, the Appellants have averred that they hold the Letters of Administration in respect of the Estate of the late Hannah Wanjiku Mwangi, the proprietor of a parcel of land known as Ruiru/Mugutha Block 1/T 2735 (the suit land); that the 2nd Appellant is the proprietor of parcel of land known as Ruiru/Mugutha Block 1/T 2734 (the suit land) and that the Respondent filed a complaint at the Thika Division Land Disputes Tribunal claiming an interest in the suit properties.

2. It is the Appellants’ case that when the Thika Land Disputes Tribunal made a decision favourable to the Respondent, they filed an Appeal with the then Provincial Land Appeals Committee in Nyeri; that the Appeals Committee was abolished by operation of the law and that this court has jurisdiction to deal with the current Appeal.

3. The Appellants have averred that they purchased the suit properties from Eunice Njeri Ng’ang’a on 3rd August, 1998 and were issued with Title Deeds on 5th May, 2008; that having obtained Title Deeds, the Tribunal had no power, authority or right to order for the cancellation of the same and that the decision of the Tribunal wasultra vires, null and void.  The Appellants have prayed for the annulment of the Award of the Tribunal which was made on 27th May, 2009 and adopted by the lower court on 22nd September, 2009.

4. The Appeal proceeded by way of written submissions.  The Appellants’ advocate submitted that as at the time the Respondent filed his complaint at the Thika Division Land Disputes Tribunal claiming the suit properties, the suit properties had been registered in the names of the Appellants.

5. Counsel submitted that the Appellants lodged an Appeal after the Tribunal made a decision in favour of the Respondent; that the Tribunal lacked the jurisdiction to entertain the dispute and that the Tribunal erred by acting beyond its jurisdiction. Counsel relied on numerous authorities which I have considered.

6. The Respondent’s counsel submitted that the Appellants were required to file an Appeal within thirty (30) days from the date of the Award; that there is no evidence to show that the Appeal was filed with the Provincial Appeals Committee within thirty (30) days and that the complaint that the Tribunal did not have jurisdiction should be raised by way of Judicial Review.

7. The record shows that the Respondent herein filed Case No. TKA/LDT/41/2008 at Thika Land Disputes Tribunal.  According to the proceedings of the Tribunal, the Respondent claimed that she had purchased parcels of land known as Ruiru/Mugutha Block 1/T. 2734 and 2735 from Rurii one Four Self Help Group.

8. I have perused the entire Record of Appeal. I have not seen the Award that was made by the Tribunal. Indeed, the proceedings of the Thika Land Disputes Tribunal which are the basis of this Appeal, are not complete.  To the extent that the proceedings of the Tribunal are incomplete, this court is unable to determine the Appeal.

9. Other than the incomplete proceedings of the Tribunal, it would appear that the Appellant challenged the decision of the Tribunal in the High Court vide Judicial Review Application No. 53 of 2011, which was dismissed.  This information is contained in the Ruling of the lower court dated 10th September 2013.

10. The Appellants have not included the Judgment of the High Court in Judicial Review Application No. 53 of 2011.  This court is therefore unable to know if the issues raised in this Appeal are the same issues that were raised by the Appellants in Judicial Review Miscellaneous Application No. 53 of 2011.

11. The failure by the Appellants to file a complete set of the proceedings of the Tribunal and the Judgment of the High Court amounts to non-disclosure of material facts by the Appellants. On that ground alone, I strike out the Appellants’ Appeal with costs.

DATED AND SIGNEDATMACHAKOSTHIS12THDAY OFJUNE, 2019.

O.A. ANGOTE

JUDGE

DATED, DELIVEREDANDSIGNEDATTHIKATHIS28TH DAY OFJUNE, 2019.

L. GACHERU

JUDGE