|Civil Appeal 61 of 2008
|PATRICK MAYOTI SHIBOKO v NICHOLAS MITALO LISECHE
|14 Apr 2011
|High Court at Kakamega
|PATRICK MAYOTI SHIBOKO v NICHOLAS MITALO LISECHE  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 61 OF 2008
V E R S U S
J U D G M E N T
2. In its award dated 20.12.2006, the Tribunal decided as follows;
(b) That in accordance with the exhibits nos. 1-3 dated 14/6/2002 + 16/4/02 one Nicholas Mitalo Liseche duly purchased the parcel of land no. ISUKHA/SHITOTO/580 from Lawrence Mayoti Liyenzelo.
(d) That despite our notices of attendance dated 1/11/2006 and 6/12/2006 to one Patrick Mayoti Shiboko duly served on him ….. he never bothered to comply.
3. The said award was then taken to the Chief Magistrate’s Court for adoption under Section 7(2) of the Land Disputes Tribunals Act No. 18 of of 1990 which provides as follows;
(2) The court shall enter judgment in accordance with the decision of the Tribunal and upon judgment being entered a decree shall issue and shall be enforced in the manner provided for under the Civil Procedure Act.””
5. Subsequently, the Appellant filed an Application dated 9.11.2007 seeking a review of the decision for reasons inter-alia that it was a nullity for want of jurisdiction and in a Ruling dated 11.8.2008, the subordinate court rendered itself as follows;
6. The Appellant was dissatisfied with the above decision and in the Memorandum of Appeal dated 14.8.2008, he raised the following grounds;
b. That the issue before the learned magistrate involved land and the issue of the validity of the award that had been adopted was a fairly weighty issue which deserved more serious treatment than the one accorded during the hearing of the application for review.
d. That the learned magistrate misdirected himself in law in finding that the subordinate court’s duty was only to adopt any award, even where the alleged award was NOT an award known to law.
7. Having read the precise written submissions by the Advocates for the parties, it is clear to me that the Appeal is completely misguided for the following reasons;
9. Secondly, any party dissatisfied with the decision has a right of appeal on both matters of law and fact to the Provincial Appeals Committee, and thence to the High Court on matters of law only. Jurisdiction is a matter of law and could only have been raised before any of the two organs and not the subordinate court.
11. The option of judicial review proceedings was available to the Appellant and the jurisdiction to make orders in that regard is conferred only in the High Court under Order 53 of the Civil Procedure Rules.
13. Orders accordingly.
J U D G E