Kimote Musau v Makumi Muluva Muthwethau & 2 others [2015] KECA 838 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed Land Disputes Tribunals can resolve boundary disputes but cannot order ownership transfers of land.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of Land Disputes Tribunals over ownership and boundaries
The Tribunal had no jurisdiction to determine ownership of land, but had jurisdiction under section 3(1) of the Land Disputes Tribunal Act to determine boundary disputes.
Section 3(1) confines tribunals to boundary determination, claims to occupy or work land, and trespass. The judge correctly found the ownership claim beyond jurisdiction but the boundary question within it. The appellant's challenge on ownership grounds failed because the Tribunal was in substance dealing with a boundary between the parties' parcels.
Tribunal's power to order transfer or registration of land
The Tribunal's order that the boundary be amended and a portion transferred to the claimant was ultra vires because implementation required excision, fresh demarcation, and registration, which the Tribunal had no power to order.
Implementing the award would require subdivision and transfer of land, which falls outside section 3(1). The court followed its prior decision in Jotham Amunavi v Chairman, Sabatia Land Disputes Tribunal, where implementation would require subdivision and thus exceeded the Act. However, having taken note of the earlier court proceedings in DMCC No. L 48 of 1978, the Tribunal need not have made any direction, so the ultra vires order had no practical consequence for the appeal.
Section 143 of the Registered Land Act
Section 143 did not apply because it concerns rectification of the register where a non-first registration was procured by fraud or mistake.
The appellant argued the Tribunal's award breached section 143(1) of the Registered Land Act. The court held that section deals with a court's power to rectify the register where a registration other than a first registration was obtained by fraud or mistake, so the contention had no application to the Tribunal's boundary award.
Costs discretion
The High Court was entitled to apportion costs against the appellant, who did not succeed, and the appellate court found no reason to interfere.
Costs follow the event and appellate courts do not interfere with discretionary costs orders unless exercised unjudicially, on wrong principles, or on no or inadequate reasons. The appellant failed in his challenge to the Tribunal's decision, so apportioning costs against him was reasonable.
Legal principles established
#- Land Disputes Tribunals have jurisdiction limited to boundary determination, claims to occupy or work land, and trespass to land; they cannot determine ownership of land or order transfer or registration of land.
- An order of certiorari will issue where a tribunal's decision is made without or in excess of jurisdiction.
- Where a trial court exercises discretion on costs, an appellate court will not interfere unless the discretion was exercised unjudicially or on wrong principles; costs follow the event.
Court orders
#- 1.The appeal fails in its entirety and stands dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Machakos
- H.C. Misc. Appl. No. 112 of 2002
- Jurisdiction invoked
- First appellate jurisdiction under the Appellate Jurisdiction Act over appeals from the High Court in judicial review matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimote Musau v Makumi Muluva Muthwethau & 2 others [2015] KECA 838 (KLR)", Case Analysis (2015). Civil Appeal No. 9 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/838/eng@2015-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.