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Court of AppealDismissedCivil Appeal No. 175 of 2010· [2013] KECA 235 (KLR)

Nyaga v Nyaga & another (Civil Appeal 175 of 2010) [2013] KECA 235 (KLR)

Court of Appeal of Kenya
3 October 2013
AVAlnashir VisramMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
2,037 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled it cannot hear appeals from High Court decisions on Land Disputes Tribunal cases, dismissing the appeal and confirming the family's land sub-division.

What this practically means

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Executive summary

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This Court of Appeal at Nyeri judgment (Visram, Koome and Otieno-Odek, JJ.A.) concerned a family land dispute among brothers over parcel Kaagari/Kigaa/1621. The 1st respondent complained to the Embu Divisional Land Disputes Tribunal, claiming the land was ancestral family land held by the 2nd respondent in trust. The Tribunal ordered sub-division, giving the 1st respondent one acre and the appellant 2.59 acres including land exchanged with the 2nd respondent's parcel Kaagari/Weru/253. The Eastern Province Appeals Committee upheld the Tribunal's award, and Khaminwa J. dismissed the appellant's High Court appeal on 30th October 2007. On second appeal, the Court of Appeal framed two issues: whether the tribunals had jurisdiction over trusteeship issues, and whether any right of appeal lay to the Court of Appeal from a High Court decision under the Land Disputes Act. The court, relying on Muranda and Kihu, held that section 8 of the Land Disputes Tribunal Act does not provide for appeals to the Court of Appeal, rendering the appeal incompetent. Nonetheless, it considered the tribunals' jurisdiction, holding that where a trust is admitted and not in issue, section 3(1) jurisdiction over division of land and claims to occupy and work land is engaged; Nekesa and Amunavi were distinguished as title cases. The court found the tribunals and the High Court had jurisdiction, and dismissed the appeal with costs to the respondents. A data quality flag is raised because the court simultaneously disclaimed jurisdiction and proceeded to dismiss the appeal on the merits.

Key legal issues

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01

Right of appeal from High Court decisions under the Land Disputes Act

Holding

The Court of Appeal has no jurisdiction to hear appeals from the High Court in matters emanating from the Land Disputes Act; the appeal was incompetent.

Reasoning

The jurisdiction of the Court of Appeal is conferred by the Constitution and statute; appellate courts are creatures of statute. Section 8 of the Land Disputes Tribunal Act, which governs appeals from tribunals and Appeals Committees, does not provide for appeals to the Court of Appeal from High Court decisions. Following Muranda and Kihu, the court had no jurisdiction and the appeal was incompetent.

p. 3
02

Jurisdiction of Land Disputes Tribunals over trusteeship claims

Holding

Where the existence of a trust over land is admitted by all parties and not in issue, the tribunals act within section 3(1) jurisdiction in ordering division of land and registration of beneficiaries; Nekesa v Wanjala and Amunavi are distinguishable because title was in issue in those cases.

Reasoning

The issue before the Divisional Tribunal was division of land and claim to occupy and work land, guided by a trust admitted by all parties. The Tribunal was not determining title or the existence of a trust. Hence the decisions on title-based disputes were distinguished, and both tribunals and the High Court had jurisdiction over the present case.

p. 3

Legal principles established

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  • There is no right of appeal to the Court of Appeal from a decision of the High Court delivered on appeal under the Land Disputes Tribunal Act; section 8 of that Act does not provide for such appeals.
  • Land Disputes Tribunals' jurisdiction under section 3(1) is confined to division of or determination of boundaries to land including land held in common, claims to occupy and work land, and trespass to land; where trusteeship is admitted and not in issue, tribunals may act on the division of land and claims to occupy it.
  • A court or tribunal without jurisdiction must cease to act.

Court orders

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  1. 1.The appeal was held to be incompetent as there is no right of appeal to the Court of Appeal
  2. 2.The appeal was dismissed with costs to the respondents

Authorities

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Legislation

  • Land Disputes Tribunal Actsection 3(1)
  • Land Disputes Tribunal Actsection 8
  • Appellate Jurisdiction Actsection 3(1)
  • Constitution of KenyaArticle 163(3)

Cases cited (6)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • Humphrey Olwisi Muranda v Yakobet Nechesa Wabuko
    Civil Appeal No. 44 of 2006
  • Nekesa v Wanjala
    Civil Appeal No. 23 of 1985
  • Domica Wamuyu Kihu v Johana Ndura Wakaritu
    Civil Appeal No. 269 of 2007
  • Jotham Amunavi v Chairman Sabatia Division Land Disputes Tribunal
    Civil Appeal No. 256 of 2002
On appeal from
High Court of Kenya at Embu
H.C.C.A No. 30 of 2006
Jurisdiction invoked
Appellate Jurisdiction Act, section 3(1); the court ultimately held it had no right of appeal under the Land Disputes Act

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, "Nyaga v Nyaga & another (Civil Appeal 175 of 2010) [2013] KECA 235 (KLR)", Case Analysis (2013). Civil Appeal No. 175 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/235/eng@2013-10-03

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