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Court of AppealDismissedCivil Appeal 269 of 2007· [2012] KECA 114 (KLR)

Dominica Wamuyu Kihu v Johana Ndura Wakaritu [2012] KECA 114 (KLR)

Court of Appeal
5 July 2012
EGE. M. GithinjiRNR. N. NambuyeDavid Kenani MaragaD. K. Maraga
1,225 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that Land Disputes Tribunals cannot decide who owns land, and no appeal lies from related High Court decisions.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nyeri against the decision of Kasango, J. of the High Court, who had held that the Nyeri District Land Disputes Tribunal and the Provincial Land Disputes Appeals Committee lacked jurisdiction over a dispute concerning ownership of Title No. Magutu/Gathehu/53. The dispute had originated in a 1989 suit in the Principal Magistrate's Court claiming that the suit land had been registered in Johana's name in trust for Dominica, then referred to the Tribunal, which awarded the land to Dominica, a decision upheld by the Appeals Committee. The Court of Appeal framed two issues: whether an appeal lay to it from a High Court decision in proceedings under the Land Disputes Tribunal Act, and whether the Tribunal had jurisdiction. On the first, the court held that appellate courts are creatures of statute; since Section 8 of the Act makes no provision for appeals to the Court of Appeal from High Court decisions under the Act, the appeal was incompetent. In the alternative, the court held that Section 3(1) of the Act limits Tribunal jurisdiction to boundary divisions, claims to occupy or work land, and trespass, and that ownership and title disputes fall outside that mandate; the High Court was therefore right. The court dismissed the appeal with costs, granting Dominica liberty to pursue her claim in Succession Cause No. 374 of 2008 or another court of competent jurisdiction. The decision of the High Court was affirmed.

Key legal issues

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01

Whether an appeal lies to the Court of Appeal from a High Court decision in proceedings under the Land Disputes Tribunal Act

Holding

No such appeal lies; the appeal is incompetent

Reasoning

Appellate courts are creatures of statute. Section 8 of the Land Disputes Tribunal Act provides for appeals from Tribunals and Appeals Committees but not to the Court of Appeal from High Court decisions. Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act require an express statutory conferral of jurisdiction to hear appeals from other courts and tribunals. The Act contains no such provision, so the appeal is incompetent.

p. 2
02

Whether the Land Disputes Tribunal and the Appeals Committee had jurisdiction over a dispute concerning ownership of land

Holding

They did not; ownership and title disputes fall outside the Tribunal's statutory mandate

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confines Tribunal jurisdiction to civil disputes relating to division of or boundaries to land, claims to occupy or work land, and trespass to land. The present dispute concerned ownership of Title No. Magutu/Gathehu/53, a claim for deregistration and registration, which falls outside those heads. The High Court was therefore right to hold both the Tribunal and the Appeals Committee lacked jurisdiction.

p. 3

Legal principles established

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  • No appeal lies to the Court of Appeal from judgments of the High Court in appeals from Land Disputes Tribunals, because the Land Disputes Tribunal Act makes no provision for such appeals
  • The jurisdiction of the Court of Appeal over appeals from courts and tribunals other than the High Court must be expressly conferred by written law
  • Land Disputes Tribunals had no jurisdiction to adjudicate disputes concerning ownership of or title to land, their mandate being limited to the matters enumerated in Section 3(1) of the Act

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Liberty granted to the appellant (as respondent in the original suit) to pursue her claim to the suit land in Succession Cause No. 374 of 2008 or in another court with jurisdiction

Authorities

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Legislation

  • Constitution of KenyaArticle 164(3)
  • Land Disputes Tribunal ActSection 3(1)
  • Land Disputes Tribunal ActSection 8
  • Appellate Jurisdiction ActSection 3(1)
On appeal from
High Court of Kenya at Nyeri
HCCA No. 1 of 2000
Jurisdiction invoked
Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act; the court found no right of appeal lay under the Land Disputes Tribunal Act and proceeded on that basis pro tanto

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Dominica Wamuyu Kihu v Johana Ndura Wakaritu [2012] KECA 114 (KLR)", Case Analysis (2012). Civil Appeal 269 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/114/eng@2012-07-05

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