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Court of AppealDismissedCivil Appeal (Court of Appeal, Kisumu)

Leonida Nekesa v Musa Wanjala [1985] KECA 38 (KLR)

Court of Appeal of Kenya
9 August 1985
AHA.R.W. HancoxHPH.G. PlattJGJ.M. Gachuhi
1,657 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that elders' arbitration cannot overturn ownership of registered land, so the first registered owner keeps the title.

What this practically means

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Executive summary

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This is an appeal from the High Court (Gicheru J), which had reversed a judgment entered in terms of an elders' arbitration award concerning West Bukusu/Khasoko/441, registered land in Bungoma. The appellant, a married woman, claimed that her deceased brother Barasa Nduka had left an oral will directing that 3.5 acres of his land be sold to pay debts and the remainder shared among his relatives. By the time of the 1983 arbitration, however, the respondent Musa Wanjala had long been registered as first proprietor, following an allowed objection before the Adjudication Officer in 1970 and first registration on 1st November 1972 under the Registered Land Act (cap 300). Gachuhi Ag JA, writing the leading judgment, held that arbitration under the Magistrate's Amendment Act 1981 was not intended to deal with title to land; the elders therefore had no jurisdiction and the proceedings were a nullity. Hancox JA, citing Obiero v Opiyo, emphasised the indefeasibility of the respondent's first registration. Both also held the High Court had erred in invoking section 9D(3)(a) of the Magistrates' Courts Act, which requires arbitrator corruption or misconduct; the proceedings should simply have been set aside as nullities. The court further noted that unchallenged customary law barred women from inheriting land and that any claim was statute-barred under the Limitation of Actions Act. Platt Ag JA concurred. The appeal was unanimously dismissed, the arbitration award and the Resident Magistrate's ruling were set aside, Gicheru J's order was varied by deleting the reference to section 9D(3)(a), and there were no orders as to costs.

Key legal issues

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01

Jurisdiction of elders' arbitration over registered land

Holding

The arbitration had no jurisdiction to arbitrate over title to a registered parcel; all proceedings before the elders and the judgment entered on the award were a nullity.

Reasoning

The Registered Land Act protects first registrations; rectification is only available for non-first registrations obtained by fraud or mistake. The respondent was the first registered proprietor, so the elders could not reverse the provisions of the law or deal with title to the land. The entire reference, award and consequent judgment were therefore nullities.

p. 2
02

Indefeasibility of first registration

Holding

The respondent's first registration made him indefeasible proprietor of W. Bukusu/Khasoko/441.

Reasoning

Following Obiero v Opiyo, a first registered owner's title is indefeasible save in accordance with the Registered Land Act. The register showed the respondent registered on first registration on 1st November 1972, long before the appellant's 1983 complaint, and no ground for rectification under section 143(1) existed.

p. 3
03

Correct basis for setting aside the null proceedings

Holding

The High Court erred in directing setting aside under section 9D(3)(a) of the Magistrates Jurisdiction (Amendment) Act 1981, which requires corruption or misconduct by arbitrators; the proceedings should simply have been set aside as a nullity.

Reasoning

Since the arbitration was a nullity for want of jurisdiction, the High Court should have ordered the setting aside of the proceedings and the judgment entered thereon as nullities. Section 9D(3)(a) was inapplicable because there was no evidence of corruption or misconduct by the arbitrators as that paragraph requires.

p. 3
04

Customary law bar on women inheriting land and limitation

Holding

Even had the appellant a claim, unchallenged customary law evidence that women do not inherit land, and the twelve-year limitation period under the Limitation of Actions Act, barred her.

Reasoning

The respondent's unchallenged evidence that women do not inherit land, corroborated by Cotran's Restatement of Customary Law, was taken as true. Further, registered land cannot be claimed after twelve years under the Limitation of Actions Act, and the appellant showed no disability; her alleged debts, if any, would have been statute barred fourteen years after the death.

p. 2

Legal principles established

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  • A first registration under the Registered Land Act confers an indefeasible title which cannot be challenged except in accordance with that Act.
  • Arbitration proceedings under the Magistrates' Jurisdiction (Amendment) Act 1981 are not intended to deal with or affect title to land.
  • Rectification of the register may only be ordered where a registration other than a first registration has been obtained by fraud or mistake.

Court orders

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  1. 1.Appeal dismissed
  2. 2.The award of the arbitrators dated the 25th October 1983 set aside
  3. 3.The ruling of the Resident Magistrate dated the 29th February 1984 set aside
  4. 4.The order of Gicheru J varied by deleting the reference to section 9D(3)(a) of the Magistrates' Courts Act
  5. 5.No orders as to costs
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against the decision of the High Court on appeal from arbitral proceedings under the Magistrates' Jurisdiction (Amendment) Act 1981

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Leonida Nekesa v Musa Wanjala [1985] KECA 38 (KLR)", Case Analysis (1985). Civil Appeal (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/38/eng@1985-08-09

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