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Court of AppealDismissedCivil Appeal No. 9 of 2005· [2015] KECA 755 (KLR)

Kimote Musau v Makumi Muluva Muthwethau & 2 others [2015] KECA 755 (KLR)

Court of Appeal
26 March 2015
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed land tribunals can decide boundary disputes but cannot order anyone to transfer or register land.

What this practically means

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Executive summary

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This appeal arose from a judicial review application in which Kimote Musau and Nyumbu Muindi sought certiorari to quash the award of the Makueni District Land Disputes Tribunal in Tribunal Case No. 4 of 2001. The Tribunal had awarded the 1st respondent the parcels he purchased from Nyumbu Muindi and directed that the boundary on the appellant's parcel Kathonzweni/Muusini/447 be amended and a portion transferred to the claimant. Wendoh, J. held that the Tribunal acted ultra vires its powers on the ownership claims but that the boundary issue on parcel 447 fell within its section 3(1) jurisdiction under the Land Disputes Tribunals Act. The appellant, aggrieved, appealed on five grounds, contending that the parcel 447 direction concerned ownership rather than boundaries, that the award breached section 143(1) of the Registered Land Act and the Land Control Act consent requirements, that the matter was res judicata following Nziu DMCC No. 48 of 1978, and that costs were wrongly apportioned. The 1st respondent, though served, did not attend. The Court of Appeal affirmed the High Court, holding that the Tribunal had jurisdiction over the boundary dispute but that its direction to amend the boundary and transfer land was ultra vires, since Tribunals cannot order transfer or registration of land; implementation would have required fresh demarcation. However, the court dismissed the appeal in its entirety, finding no basis to quash the decision, and upheld the costs apportionment. The judgment closes with an apology by Mwilu, JA for the delay in delivery.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over boundary disputes versus ownership disputes

Holding

The Tribunal had jurisdiction to determine a boundary dispute under section 3(1) of the Land Disputes Tribunal Act, but not a dispute over ownership of land

Reasoning

Section 3(1) confines Tribunals to civil disputes over boundary determination, claims to occupy or work land, and trespass to land. The High Court correctly distinguished the ownership claim regarding parcels 446 and 552 (beyond jurisdiction) from the boundary issue on parcel 447 (within jurisdiction). The court affirmed that distinction and rejected the appellant's submission that the parcel 447 direction was in truth an ownership determination.

p. 4
02

Tribunal's power to order transfer or registration of land

Holding

The Tribunal acted ultra vires its jurisdiction in directing that the boundary on parcel 447 be amended and a portion transferred, since Tribunals cannot order transfer or registration of land

Reasoning

The final award required excision of a portion of land and its transfer to the claimant, entailing fresh demarcation and subdivision. Implementation would fall outside the purview of section 3(1) of the Act, consistent with the approach in Jotham Amunavi. However, the court did not quash the direction: it held the Tribunal, having taken note of the DMCC proceedings, need not have made any direction, and dismissed the appeal in its entirety.

p. 5
03

Section 143(1) of the Registered Land Act

Holding

Section 143 had no application because it concerns rectification of a register where a non-first registration was procured by fraud or mistake

Reasoning

The appellant argued the Tribunal's award was ultra vires section 143(1) of the Registered Land Act because his was a first registration which could not be cancelled. The court held nothing turned on that contention, as the section addresses the power of a court to rectify a register in cases of fraud or mistake in respect of registrations other than first registrations.

p. 4
04

Res judicata

Holding

The res judicata ground failed because the Tribunal merely respected and acknowledged the Nziu Court finding when recommending that the court-fixed boundary be the true boundary

Reasoning

Section 13(3) of the Land Disputes Tribunals Act bars Tribunal proceedings already heard and determined by a court. The appellant had disclosed a court ruling to the Tribunal, but the court found the Tribunal's recommendation merely acknowledged the boundary fixed in DMCC No. 48 of 1978, so it was dealing with a boundary question rather than re-determining a concluded matter.

p. 4
05

Costs

Holding

The High Court's order that the appellant pay a portion of the costs was reasonable and the Court of Appeal declined to interfere

Reasoning

Costs follow the event and an appellate court should not interfere with a trial judge's discretion on costs unless exercised unjudicially, on wrong principles, or with no good reason. The appellant did not succeed in his challenge to the Tribunal's decision, so it was reasonable that he bear a portion of the costs in the High Court.

p. 5

Legal principles established

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  • Land Disputes Tribunals have jurisdiction only over the civil disputes enumerated in section 3(1) of the Land Disputes Tribunals Act, and cannot order transfer or registration of land; implementation requiring subdivision or transfer of land falls outside that jurisdiction
  • An order of certiorari will issue where a decision is made without or in excess of jurisdiction or where rules of natural justice are not complied with
  • Judicial review is confined to public law, not private law

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The appellant to pay costs to the respondent

Authorities

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Legislation

  • Land Disputes Tribunals Act (No. 18 of 1990)section 3(1)
  • Land Disputes Tribunals Act (No. 18 of 1990)section 13(3)
  • Registered Land Actsection 143(1)
  • Land Control Actsection 6
  • Law of Contract Actsection 3
  • Civil Procedure Actsection 7

Cases cited (4)

  • Republic v Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR (Civil Appeal 160 of 2008)
  • Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR (Civil Appeal 266 of 1996)
  • Jotham Amunavi v The Chairman Sabatia Land Disputes Tribunal & Enos Kenyani Amunavi
    Civil Appeal No. 256 of 2002 (Unreported)
  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    [2010] eKLR (Civil Appeal 85 of 2006)
On appeal from
High Court of Kenya at Machakos
H.C. Misc. Appl. No. 112 of 2002
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court's decision in a judicial review application

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, "Kimote Musau v Makumi Muluva Muthwethau & 2 others [2015] KECA 755 (KLR)", Case Analysis (2015). Civil Appeal No. 9 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/755/eng@2015-03-26

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