Sikuku Stella Mason v Ben Kumbuti Wasilwa [2010] KEHC 2838 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA

Civil Appeal 66 of 2000

SIKUKU STELLA MASON::::::::::::::APPELLANT

~VRS~

BEN KUMBUTI WASILWA::::::::::::::RESPONDENT

(Appeal from original BGM CM CC MISC. NO.79 of 1999)

JUDGMENT

This appeal was heard by retired Justice Mitey on 9/7/2003. I have now taken it over for writing judgment.The Appellant Sikuku Stella Mason appeals against the ruling of Bungoma Chief Magistrate Jacob Ombonya in Misc. Application No.79 of 1999. The facts giving rise to this appeal is that the Respondent Ben Kumbuti Wasilwa sued the Appellant before Lugari Divisional Land Disputes Tribunal in respect of plot number 238, Chekalini Settlement Scheme. It was ordered in the award that the land be subdivided into two with the Respondent getting five (5) acres and the Appellant’s family ten (10) acres.The Respondent was dissatisfied and appealed to the Provincial Land Disputes Appeals Tribunal sitting at Kakamega.The appeals tribunal ordered that the Respondent gets 15 acres and carries out the succession exercise in the estate of hisdeceased father.This decision was read to the parties before Bungoma Chief Magistrate court and the decision adopted as judgment of the court on 10/8/2000.

The Appellant relies on six (6)grounds which in summary are as follows:

a)That the Chief Magistrate lacked jurisdiction to adopt the Provincial Appeals Tribunal as judgment of the court and applied the wrong principles of the law.

b)That the Appellant was not given an opportunity to be heard and that in disregardingthe law, the magistrate occasioned a serious miscarriage of justice.

Mr. Omukunda for the Appellant argued the grounds of appeal before the court.Mr. Ocharo for the Respondent presented the grounds of opposition.He submitted that the act of the adoption of the awardcannot be challenged.It is only the award itselfthat may be challenged.He said that if the orders sought are granted, the Applicant should bear the costs of the appeal.

I have perused the proceedings of the Chief Magistrate’s Court.The Lugari Division Land Disputes Tribunal was adopted as judgment of the court on 30/9/99 in accordance with section 7 (2) of the Land Disputes Tribunal Act, 1990. The Respondent appealed before the Provincial Land Dispute Appeals Committee against the award of the tribunal in accordance with section 8(1) of the Act.The decision was made by the committee in favour of the Respondent herein.It appears that this decision was erroneously filed in court and adopted as judgment on 10/8/2000 by the Chief Magistrate.

Section 8 (9) provides that any party aggrieved by the decision of the appeals committee shall appeal to the High Court within sixty (60) days.It is clear that the magistrate’s court has no business to deal with the decision of the Provincial Appeals Committee.The Chief Magistrate lacked jurisdiction when he adopted the decision as judgment on 10/8/2000. The ruling he made is therefore void ab initio and is hereby set aside.The appeal therefore succeeds.It was not the fault of either party that the Chief Magistrate made the said decision.The Respondent took the decision to court for adoption and he is hereby condemned to meet the costs of this appeal.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signedthis 29th day of April 2010

In the presence of:-

Mr Ocharo for Respondents