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Court of AppealPartially AllowedCivil Appeal No. 161 of 2011· [2013] KECA 218 (KLR)

Joseph Karobia Gicheru v Michael Gachoki Gicheru [2013] KECA 218 (KLR)

Court of Appeal of Kenya
18 September 2013
AVAlnashir VisramPKP.O. KiageJOJ. Otieno Odek
2,232 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed Land Disputes Tribunals cannot decide who owns land, voiding all tribunal decisions made on ownership or trust claims.

What this practically means

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Executive summary

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This is a single judgment of the full Court of Appeal at Nyeri (Visram, Kiage and Odek, JJA) allowing the appeal of Joseph Karobia Gicheru against the High Court's dismissal of his appeal from decisions of the Kirinyaga Central Division Land Disputes Tribunal and the Central Provincial Appeals Tribunal. The dispute between blood brothers concerned Parcel No. INOI/THAITA/160, with the respondent claiming the appellant held it in trust and the tribunals awarding him two acres. The appellant contended, first in the High Court and then before the Court of Appeal, that the tribunals lacked jurisdiction over title and trust. The High Court judge refused to entertain the objection because it was not pleaded in the Memorandum of Appeal. The Court of Appeal held that jurisdiction under section 3 of the Land Disputes Tribunal Act is strictly confined to boundary disputes, claims to occupy or work land, and trespass, and does not extend to ownership or trust in registered land. Proceedings before a tribunal without jurisdiction are null and void ab initio, cannot be cured by consent, waiver or acquiescence, and a jurisdictional objection may be taken for the first time on appeal because a nullity cannot be converted into a validity by pleading defaults. The Court set aside the High Court judgment and both tribunal decisions entirely, but denied the appellant costs for raising the jurisdictional point belatedly, ordering each party to bear their own costs.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over title and trust

Holding

Section 3 of the Land Disputes Tribunal Act confines tribunals to boundary disputes, claims to occupy or work land, and trespass; determinations of ownership and trust fall outside their jurisdiction

Reasoning

The Act was enacted to remove specified matters from the ordinary courts and donate them to tribunals; its jurisdictional grant must therefore be construed strictly. Both tribunals determined ownership and trust over registered land, matters reserved to the High Court and subordinate courts, so their decisions were ultra vires and void.

p. 4
02

Whether an unpleaded jurisdictional objection may be entertained

Holding

The High Court judge erred in refusing to determine the jurisdictional objection merely because it was not in the Memorandum of Appeal; lack of jurisdiction is a fundamental nullity question that may be raised at any stage, including on appeal

Reasoning

Once the issue of jurisdiction was brought to the judge's attention, it was fundamental to the validity of the orders made and she ought to have decided it. Her formalistic repudiation of the point on pleading grounds was wrong because a nullity cannot be cured by default of pleadings; the point may properly be taken in an appellate court.

p. 4

Legal principles established

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  • Land Disputes Tribunals have only the jurisdiction conferred by statute and cannot determine questions of title to land or trust; awards exceeding that jurisdiction are nullities
  • Proceedings before a court or tribunal without jurisdiction are null and void ab initio, and neither consent nor acquiescence of the parties can cure the defect
  • A jurisdictional objection going to the validity of orders may be raised for the first time on appeal, and a nullity cannot be converted into a validity by pleading defaults

Court orders

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  1. 1.The judgment of the High Court (Kasango J.) dated 29th April 2008 is set aside in entirety
  2. 2.The decision of the Central Provincial Appeals Tribunal in Appeal Case No. 99 of 1999 delivered on 27th July 1999 is set aside
  3. 3.The decision of the Kirinyaga Central Divisional Tribunal leading to that appeal is set aside
  4. 4.Each party shall bear his own costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Registered Land ActSection 15

Cases cited (4)

  • ISSAC MAINA MURATHE Vs. JESIDAH WANJIRU MURATHE
    [2010] eKLR
  • BEATRICE M'MARETE Vs. REPUBLIC & 2 OTHERS EX-PARTE JOHN GITONGA MBUI
    [2004] eKLR
  • JOTHAM AMUNAVI Vs. THE CHAIRMAN SABATIA DIVISION LAND DISPUTES TRIBUNAL & ANOR
    Kisumu Civil Appeal No. 250 of 2002 (unreported)
  • Seid bin Seif Vs. Shariff Mohammed Shatry
    [1940] 19 (1) KLR 9 at 10, 27 March 1940
On appeal from
High Court of Kenya at Nyeri
HCCA No. 96 of 1999 (A)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers over High Court decisions (appeal against judgment in HCCA No. 96 of 1999 (A))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Karobia Gicheru v Michael Gachoki Gicheru [2013] KECA 218 (KLR)", Case Analysis (2013). Civil Appeal No. 161 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/218/eng@2013-09-18

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