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Court of AppealDismissedCivil Appeal No. 131 of 2018· [2020] KECA 190 (KLR)

Theophilus Kipsang Lelei v Mugeiyot Farm Directors 1. Jacob Kibitok Birech 2. Daniel Kimaru Maritim 3. Benjamin Kiprop Arap Koech 4. Kipkasio Arap Keter

Court of Appeal of Kenya
20 November 2020
1,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that repealing a law does not erase appeal rights people had already earned, and upheld extra time to file a land appeal.

What this practically means

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Executive summary

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The appellant, administrator of the estate of Theophilus Kipsang Lelei, appealed against a ruling of the Environment and Land Court at Kitale (Obaga, J.) delivered on 20th January 2017, which allowed the respondents' application for extension of time to appeal the decision of the Rift Valley Provincial Land Disputes Appeals Committee given on 3rd August 2010. The appellant argued that the respondents had no right of appeal: the Land Disputes Tribunals Act, which under Section 8(9) allowed appeals to the High Court on points of law within sixty days, was repealed by the Environment and Land Court Act which commenced on 30th August 2011, and under the transitional Section 30 only pending matters could continue. The respondents relied on Section 3A of the Civil Procedure Act and the inherent power of the court to meet the ends of justice, and also challenged the competence of the appeal on grounds of out-of-time service and an incomplete record. The Court of Appeal, in a single judgment of the court delivered by Nambuye, Musinga and Gatembu, JJA, dismissed the appeal. It held that the right of appeal to the High Court on points of law was expressly conferred by Section 8(9) of the Land Disputes Tribunals Act, and that the repeal of that Act did not take away the respondents' accrued right of appeal, since they were past the committee stage and their remedy lay in the High Court. Applying the Mbogo v. Shah test, the court found no basis for interfering with the Judge's discretionary grant of extension of time, which had allowed the respondents twenty-one days to file their appeal. The decision of the High Court was affirmed, with costs to the respondents.

Key legal issues

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01

Existence of a right of appeal from the Appeals Committee

Holding

Section 8(9) of the Land Disputes Tribunals Act expressly conferred a right of appeal to the High Court on points of law within sixty days, subject to certification that an issue of law was involved; the respondents therefore had a right of appeal.

Reasoning

The court examined the statutory scheme of the Land Disputes Tribunals Act: Section 8 provided appeals to the Provincial Appeals Committee; Section 8(8) made the Committee's decision final on issues of fact, but Section 8(9) allowed appeal to the High Court on a point of law within sixty days, subject to certification. The statutory right of appeal therefore existed, and a court cannot be said to lack jurisdiction to extend time where such a right exists.

p. 2
02

Effect of the repeal of the Land Disputes Tribunals Act on an accrued right of appeal

Holding

The repeal of the Act by the Environment and Land Court Act, which commenced on 30th August 2011, did not take away a right of appeal that had already accrued; the respondents were past the committee stage and their remedy lay in the High Court.

Reasoning

The court endorsed the learned Judge's reasoning that although no proceedings were pending before the Appeals Committee when the Act was repealed, the transitional provisions in Section 30 of the Environment and Land Court Act governed pending matters, and the repeal did not extinguish the applicants' accrued right of appeal. Since they had shown reasons for the delay, they were entitled to be afforded the opportunity to appeal.

p. 3
03

Appellate interference with discretionary decisions

Holding

The discretion to extend time having been exercised judicially, the Court of Appeal had no basis for interference: no irrelevant considerations were taken into account, no relevant considerations ignored, and the decision was not plainly wrong.

Reasoning

Applying the Mbogo v. Shah test, the court held that interference with a judge's exercise of discretion is limited to cases of misdirection, wrongful consideration of matters, or a plainly wrong decision resulting in injustice. The appellant had not demonstrated any of these defects in the Judge's grant of extension of time with leave to file the appeal within 21 days.

p. 3

Legal principles established

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  • A right of appeal from a Provincial Appeals Committee decision to the High Court on points of law was expressly conferred by Section 8(9) of the Land Disputes Tribunals Act; where such a statutory right exists, a court has jurisdiction to extend time to appeal notwithstanding the repeal of the statute, the repeal not having extinguished the accrued right.
  • An appellate court will not interfere with a judge's exercise of discretion to extend time unless the judge misdirected himself, took into account irrelevant matters or failed to consider relevant ones, or the decision is plainly wrong resulting in injustice.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
Environment and Land Court at Kitale
ELC. Misc. C. Application No. 8 of 2014
Jurisdiction invoked
First appellate jurisdiction over appeals from the Environment and Land Court (Environment and Land Court Act); appeal against a ruling on extension of time

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Theophilus Kipsang Lelei v Mugeiyot Farm Directors 1. Jacob Kibitok Birech 2. Daniel Kimaru Maritim 3. Benjamin Kiprop Arap Koech 4. Kipkasio Arap Keter", Case Analysis (2020). Civil Appeal No. 131 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/190/eng@2020-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.