Analysis And Determination: -
13.Before dealing with the issue for determination as framed above, a few non contested issues were settled which the Courts needs to note before reverting the framed issue.
14.It is common ground that the National Land Commission determination sought to be appealed from by the Applicant was delivered on 1/3/2019, and the Applicant took out Judicial Review proceedings in Nairobi ELC JR No. 5/2020.
15.It is commons ground that upon filing of Nairobi ELC JR No. 5/2020 a stay of implementation of the National Land Commission determination was issued but the said stay order lapsed on 20/4/2023 upon delivery of the Judgment in Nairobi JR No. 5/2020.
16.It is also common ground that the Memorandum of Appeal sought to be deemed as properly filed related to the said National Land Commission determination dated 1/3/2019 and is dated 28th April 2023.
17.The Applicant further confirmed that there is a Notice of Appeal lodged in the Court of Appeal against the judgment in Nairobi JR No. 5/2020.
18.The above are the uncontested facts that arose from the application and the replies and submissions of the parties.
19.The Application subject of this ruling is expressed to be brought under the provisions of Section 1A, 1B, 3A and 799 of the Civil Procedure Act. Order 42 Rule 6, Order 50 Rule 1 of the Civil Procedure Rules (2020) Sections 13 (1) (4) and 16 A (1) and (2) of the Environment and Land Court Act, Article 50 and 159 (2) (d) of the Constitution.
20.On issue number 1 of the issues, the Applicant at paragraph 9.0 of its submission submits that it is not necessary to seek leave before filing of an Appeal under Section 79 (a) of the Civil Procedure Act and Section 16 A (1) and (2) of the Environment and Land Court Act, hence Appeal could be filed, as it was, and thereafter seek to have an appeal admitted out of the statutory period of time.
21.Section 79(g) upon which this application is founded on provides as follows: -
23.From the above provisions it follows thus there is a right of appeal exercisable from decrees and orders of Subordinate Courts or Local Tribunals to be exercised within 30 days, and an appeal therefrom can be admitted on satisfaction to the Court of good and sufficient cause.
24.Aware of this principles of the law, during the highlighting of the submissions the Court posed the question to the parties as to whether the National Land Commission whose determination is being appealed from is a subordinate Court or a Local Tribunal?
25.In answer to this question Dr. Ojiambo Learned Counsel for the Applicant answered that the National Land Commissions was a Subordinate Court and hence the Applicant could exercise the right of appeal under Section 16A (1) and (2) while Mr. Tororei learned Counsel for the interested Party, Mr. Motari for the 1st Respondent as well as Mrs. Nderitu for the 2nd Respondent all responded that the National Land Commission was a Tribunal. It was Mr. Tororei’s further submission that a right of Appeal existed against the decisions of National Land Commissions made under Section 15 of the National Land Commissions Act under Regulation 29 of the schedules on the National Land Commissions (Investigation of Historical Injustices) Regulations, 2017.
26.With tremendous respect to Dr. Ojiambo Learned Counsel, the National Land Commission is this not a Subordinate Court, as the Subordinate Courts are defined under Article 169 of the constitution, and the National Land Commission is not one of them.
27.With regard to the issue as to whether the National Land Commission is a Tribunal, with utmost respect to Messrs. Tororei, Motari and Mrs. Nderitu, the National Land Commissions is equally not a Tribunal. As the Tribunals envisaged under Section 16A were defined under the Practice Direction on Proceedings relating to the Environment, the use and occupation and title to land and proceedings in others Courts Trite Gazette Notice No. 5178/2014 paragraph 13 thereof.The Tribunal identified therein are interalia, Business Premises Rent Tribunal, Rent Restriction Tribunal and National Environment Tribunal.
28.The above findings find resonance in the decision in Owinyo & 3 others (Appealing for and behalf of the communities of Alego and Yimbo vs National Land Commission. ELC Misc Case No. E019/2022 at Siaya (unreported).
29.Thus , the National Land Commission is a Constitutional body exercising Constitutional and Statutorily duties under the National Land Commission Act.
30.It follows therefor that a Committee of the National Land Commission such as the one set up under Section 15 of the National Land Commission Act is neither a Subordinate Court nor a tribunal but a quasi judicial body.
31.Thus the right of Appeal under Section 79 (a) of the civil Procedure Act and 16A (1) and (2) of the Environment and Land Court Act would not be available against a decision of the Committee of National Land Commissions as the said right of Appeal applies to Subordinates Courts and Tribunals. Thus in answer to issue number I find that there is no right of appeal under Section 16 A (1) available against the decision of a committee of National and Land Commission.
32.The principles of good and sufficient cause for extension of time for an appeal filed out of time provided under Section 79(a) of the Civil Procedure Act and 16A (1) and (2) of the Environment and Land Court Act would equally not be available to the Applicant and are not applicable in the present application.
33.Having held that, I find that the Applicant had a Right of Appeal under Regulation 29 of the Historical Land Injustices Regulations 2017.
34.Regulation 29, grant a right of Appeal to be exercised within 28 days of publication of the decision/ determination.
35.In our present application, the National Land Commission determination was dated 1/3/2019 and the Memorandum of Appeal was dated on 28/4/2023, 4 years later, and the Court thus has to determine an extension of time. The Applicants vide paragraph 9 of their submissions submit that it is not necessary to seek leave to file an appeal out time.
36.However, as has been held the provisions of Section 79 (a) of the Civil Procedure Act and Section 16 A (2) is not applicable, it follows that extension of time has to be granted nonetheless, for an Appeal to be deemed to be proper.
37.The principles for the exercise of the judicial discretion in extension of time were set out in the Court of Appeal decision in Leo Silla Mutiso vs Rose Hellen Wangari Mwangi Nai Civil Application No. 255/1997; Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, equally empower Courts to extended time.
38.In the Leo silla Mutiso case, the Court of Appeal stated as follows; -
39.The above principle shall guide the Court in determining the application. The principles of good and sufficient cause as submitted by Dr. Ojiambo Senior Counsel having their foundation on Section 79 (a) of the Civil Procedure Act and Section 16A (1) of the Environment and Land Court Act, have been found not to be applicable in the present application.
40.On length of the delay, it is common ground that the Application herein has been filed 4 years after the decision.
41.In the submissions before Court the Applicant submit placing reliance on the Court of Appeal decision. In the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR, that the “law does not set out any minimum or maximum period of delay.” All it states is that “any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour, there has to be a valid and clears reasons upon which discretion can be favorably exercised.”
42.The Appellant further submitted that the Appeal was filed immediately upon the delivery of Judgment in Nairobi ELC JR 5/2020 thus there was no delay.
43.In response Mr. Motari for the 1st Respondent submits that the Appeal was filed 4 years after the decision and places reliance in the decision in Alma Farm Limited vs National Land Commission and 2 others (2021) eKLR.
44.Mrs. Nderitu for the 2nd Respondent argues the Court to find 4 years delay inordinate and has cited the decision in the case of Moses Mureithi Nyaga vs Juliet Wanjaa ireri (2018) eKLR, where the Court found 1-year delay not inexcusable.
45.On behalf of the Interested Party Mr. Totorei submits that 4-year delay is in ordinate.
46.On the reasons for the delay, the Applicant submits that the delay was caused by the fact that it had pursued Judicial Review proceedings through Nairobi ELC JR No. 5/2020.
47.In response the 1st Respondent and Interested Party submit that the reason advanced for the delay is not satisfactory.The Applicants were aware of their right of Appeal which was time bound and chose not to exercise it.
48.The Courts finds that the 4-year delay is an inordinate delay but would have allowed the extension of time, if the reasons for the delay herein that the Applicant pursued Judicial Review proceedings were satisfactory.
49.I find the reasons unsatisfactory because the Applicant was aware of the time bound nature of an appeal but consciously chose to pursue Judicial Review proceedings and not an appeal against the merits of a determination.
50.Accordingly, the reason advanced being unsatisfactory and taking into consideration the length of the delay, the Court declines to extend time to file an Appeal.
51.The upshot is that there is no appeal before Court and hence the issue of stay of execution shall not be considered. The Court had earlier alluded to a ruling in respect of an application by the National Land Commission for joinder, and having declined to extend time for the Appeal and there being no Appeal, the application dated 26/5/2023 is deemed to have been overtaken by events and the Court shall not pronounce itself on that application.
52.For the reasons advanced in this Ruling, the application dated 28/4/2023 is hereby dismissed with costs to the Respondents.