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Court of AppealDismissedCivil Appeal No. 9 of 2005· [2015] KECA 838 (KLR)

Kimote Musau v Makumi Muluva Muthwethau & 2 others [2015] KECA 838 (KLR)

Court of Appeal
25 March 2015
2,325 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 confirmed Land Disputes Tribunals can resolve boundary disputes but cannot order ownership transfers of land.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against the decision of Wendoh, J. of the High Court at Machakos refusing to quash by certiorari an award of the Makueni District Land Disputes Tribunal. The Tribunal had awarded the 1st respondent parcels Kathonzweni/Muusini/446 and 552, which he had purchased from Nyumbu Muindi, and directed that the boundary on the appellant's parcel 447 be amended and a portion transferred to him. The High Court held the Tribunal acted ultra vires on the ownership question but had jurisdiction over the boundary issue. The Court of Appeal agreed: under section 3(1) of the Land Disputes Tribunal Act, tribunals may determine boundary disputes but not ownership of land, and they lack power to order transfer or registration of land; the direction to amend the boundary and transfer land was therefore ultra vires, consistent with Jotham Amunavi v Chairman, Sabatia Land Disputes Tribunal. Section 143 of the Registered Land Act was inapplicable, being confined to rectification of non-first registrations procured by fraud or mistake. On res judicata, the court found the Tribunal merely acknowledged the Nziu court's 1978 ruling. On costs, the court declined to interfere with the judge's apportionment, costs following the event. The appeal was dismissed in its entirety with costs to the respondent. The judgment binds lower courts on the limits of Land Disputes Tribunal jurisdiction. The court also noted the delay in delivery of the ruling, for which Mwilu, JA took personal responsibility.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over ownership and boundaries

Holding

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.

Reasoning

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.

p. 3
02

Tribunal's power to order transfer or registration of land

Holding

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.

Reasoning

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.

p. 4
03

Section 143 of the Registered Land Act

Holding

Section 143 did not apply because it concerns rectification of the register where a non-first registration was procured by fraud or mistake.

Reasoning

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.

p. 3
04

Costs discretion

Holding

The High Court was entitled to apportion costs against the appellant, who did not succeed, and the appellate court found no reason to interfere.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal fails in its entirety and stands dismissed with costs to the respondent

Authorities

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Legislation

  • Land Disputes Tribunal Actsection 3(1)
  • Land Disputes Tribunal Actsection 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 under the Appellate Jurisdiction Act over appeals from the High Court in judicial review matters

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 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.