Andrew Kiptanui Sang as administrator of the estate of Theophilus Kipsang Lelei v Jacob Kibitok Birech & 3 others (Mugeiyot Farm Directors) [2020] KECA 190 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in allowing the respondents' application for extension of time within which to appeal the decision of the Provincial Appeals Committee
- 2.Whether the respondents had a right of appeal from the decision of the Appeals Committee under Section 8(9) of the Land Disputes Tribunals Act
- 3.Whether the repeal of the Land Disputes Tribunals Act by the Environment and Land Court Act took away the respondents' right of appeal
Key legal issues
#Existence of a right of appeal from the Appeals Committee
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.
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.
Effect of the repeal of the Land Disputes Tribunals Act on an accrued right of appeal
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.
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the learned Judge's reasoning that although no proceedings were pending before the Appeals Committee when the Act was repealed, the transitional provisions in Section 30 of the Environment and Land Court Act governed pending matters, and the repeal did not extinguish the applicants'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.
Appellate interference with discretionary decisions
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#The appellant's appeal against the ruling granting extension of time
No basis established for interfering with the Judge's exercise of judicial discretion
Costs
The appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The result is that the appeal fails and is hereby dismissed with costs to the respondents.
There can be no doubt therefore that the right of appeal to the High Court on points of law was expressly conferred by statute and the contention by the appellants that the respondent had no right of appeal is not correct.
We are unable to fault the reasoning and conclusion reached by the learned Judge in that regard.
We do not have any basis for interfering with the decision of the Judge.
Issues in the judgment
#The judgment inconsistently records the date of the Appeals Committee decision, referring in one passage to the decision of '3rd August 2020' where the context and all other references indicate 3rd August 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Kiptanui Sang as administrator of the estate of Theophilus Kipsang Lelei v Jacob Kibitok Birech & 3 others (Mugeiyot Farm Directors) [2020] KECA 190 (KLR)", 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.