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Court of AppealDismissedCivil Appeal No. 64 of 2016 (Nakuru)· [2020] KECA 303 (KLR)

Lemita Ole Lemein v Attorney General & 2 others [2020] KECA 303 (KLR)

Court of Appeal of Kenya
9 October 2020
WKW. KaranjaPKP.O. KiageFSF. Sichale
8,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a Land Disputes Tribunal had no power to cancel a registered land title, so the cancellation was void and the owner's title stands.

What this practically means

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Executive summary

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This was a first appeal from the Environment and Land Court at Nakuru (Munyao Sila, J.), which had allowed a constitutional petition by Lekinyot Ole Lanke, quashed the award of the Ololunga Land Disputes Tribunal and the decree of the Narok Senior Principal Magistrate's Court adopting it, and ordered the reinstatement of the petitioner as proprietor of CIS-Mara/Oldonyo-Rasha/377. By a majority (Karanja, JA, with Sichale, JA concurring), the Court of Appeal dismissed the appeal with costs to the 3rd respondent and affirmed the ELC judgment. The majority held that the petition was not res judicata because the earlier suit was withdrawn before hearing and judicial review does not determine ownership on the merits; that the petition met the Anarita Karimi Njeru threshold of precision; and that the tribunal, whose statutory jurisdiction was confined to boundary disputes, claims to occupy or work land and trespass, had no power to determine ownership of registered land or cancel a title. The cancellation of the 3rd respondent's title was therefore a nullity, and jurisdiction could be addressed by a court suo motu even if not pleaded. Kiage, JA dissented: in his view the petition was incompetently lodged before the ELC, which lacks a general Bill of Rights enforcement mandate, the 2010 Constitution was wrongly applied retrospectively, and the claims were ordinary civil disputes impermissibly constitutionalized; he would have allowed the appeal on the principle of constitutional avoidance. The dissent does not disturb the binding majority disposition.

Key legal issues

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01

Res judicata and abuse of process

Holding

The petition was not res judicata: the earlier suit HCCC No. 245 of 2010 was withdrawn before hearing and the judicial review proceedings did not determine ownership on the merits.

Reasoning

For res judicata, the issue must have been directly and substantially in issue and heard and finally determined by a competent court between the same parties. The prior suit was withdrawn before hearing, a fact disclosed and uncontested, and judicial review does not delve into the merits of ownership. No element of the doctrine was satisfied.

p. 5
02

Sufficiency of particulars of constitutional violation

Holding

The 3rd respondent met the Anarita Karimi Njeru threshold; the petition disclosed sufficient particulars of the infringements of the right to property and fair hearing.

Reasoning

Although the dispute appeared to be between private citizens over land, it raised weighty constitutional issues. The petition identified the rights infringed, the provisions breached and the manner of infringement, being proceedings conducted before a tribunal without jurisdiction and without joining or hearing the petitioner.

p. 5
03

Jurisdiction of the Land Disputes Tribunal

Holding

The tribunal lacked jurisdiction to determine ownership of registered land or order cancellation of title; its award and the decree adopting it were nullities.

Reasoning

The tribunal's jurisdiction under section 3 of the Land Disputes Tribunal Act extended only to boundary disputes, claims to occupy or work land, and trespass. It could not issue declaratory orders on ownership or order cancellation of title, and it condemned the petitioner unheard, breaching natural justice and the right to property.

p. 6
04

Determination of unpleaded issues / jurisdiction

Holding

The trial Judge properly addressed the tribunal's jurisdiction; the issue was in fact pleaded, and in any event jurisdiction can be raised suo motu at any stage.

Reasoning

Paragraph 18 of the petition expressly pleaded that the tribunal's assumption of jurisdiction was illegal. Further, jurisdiction is omnipresent, cannot be conferred by consent or ignored, and may be determined by the court even without prompting.

p. 6

Legal principles established

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  • The defunct Land Disputes Tribunal had no jurisdiction to hear and determine disputes concerning ownership of registered land and could not order cancellation of a title deed.
  • Jurisdiction is primordial: a court or tribunal must satisfy itself of its jurisdiction suo motu, and the issue of jurisdiction may be raised at any stage of the proceedings, even without pleading.
  • Any act or proceeding founded on a nullity is itself null and void and needs no court order to set it aside.
  • A first appellate court must analyze and evaluate the evidence afresh and reach its own independent decision while allowing for the trial court's advantage of seeing and hearing the witnesses.
  • A suit that was withdrawn before hearing and determination on the merits cannot found a plea of res judicata.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Decision of the learned Judge of the ELC upheld
  3. 3.Costs of the appeal to the 3rd respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 162
  • Constitution of Kenya, 2010Article 165(3)(b)
  • Constitution of Kenya, 2010Article 165(6) and (7)
  • Former (repealed) Constitution of KenyaSections 75 and 77
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Environment and Land Court Act, No. 19 of 2011Section 13(7)
  • Civil Procedure ActNot specified (joinder, review and setting aside provisions)
  • Court of Appeal RulesRule 29(1)(a)

Cases cited (34)

  • Anarita Karimi Njeru v. Republic
    No.7 of 1979 1 KLR 154
  • Trusted Society of Human Rights v. Mumo Matemu & Another
    Petition No. 279 of 2012
  • Papinder Kaur Atwal v. Manjit Singh Amrit
    Nairobi Petition No. 236 of 2011
  • Harrikinson v. Attorney General of Trinidad and Tobago
    (1980) AC 265
  • Isaac Ngugi v. Nairobi Hospital
    Nairobi Petition No. 407 of 2012
  • Chemei Investments Limited v. The Attorney General & Others
    Nairobi Petition No. 94 of 2005 (Unreported)
  • Teachers Service Commission v. Simon P. Kamau & 19 Others
    (2015) eKLR
  • Independent Electoral & Boundaries Commission & Another v. Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Justice Kalpana H. Rawal v. Judicial Service Commission & 3 Others
    (2016) eKLR
  • Kimani v. Attorney General
    (1969) EA 29
  • Evelyn College of Design Ltd. v. Director of Children's Department & Another
    (2013) eKLR
  • Kenya Bankers Association v. Minister of Finance & Another
    (2002) 1KAR 61
  • Gathigia v. Kenyatta University
    (2008) KLR 587
  • Ramanpoo v. Attorney General of Trinidad and Tobago
    (2004) Law Reports of the Commonwealth
  • PIL Kenya Ltd Vs. Oppong
    [2009] KLR 442
  • Maithene Malindi Enterprises Limited v. Kaniki Karisa Kaniki & 2 Others
    (2018) eKLR
  • William Koross vs. Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR
  • Ngugi vs. Kinyanjui & 3 Others
    [1989] KLR 146
  • Political Parties Forum Coalition & 3 Others v. Registrar of Political Parties & 8 Others
    Nairobi Civil Appeal No. 80 of 2014
  • Jones -v- National Coal Board
    [1957] 2 QB 55
  • Adetoun Oladeji (Nig) Ltd -v- Nigeria Breweries Plc
    S.C. 91/2002
  • Esso Petroleum Co. Ltd -vs- South Port Corporation
    [1956] AC 218
  • Puspa - vs- Fleet Transport Company
    [1960] EA 1025
  • Nyabicha -vs- Kenya Tea Development Authority & Others
    [2010] eKLR
  • Joseph Amisi Omukanda v Independent Elections & Boundaries Commission & 2 Others
    Nairobi Civil Application No. Nai 14 of 2014 (UR 5/2014)
  • GANDY VS CASPAIR
    (1956) 23 EACA 139
  • ODD JOBS VS MUBIA
    (1970) EA 476
  • Macfoy v. United Africa Company Limited
    (West Africa) [1962] A.C 152
  • ONYANGO vs. ATTORNEY GENERAL
    [1986-89] EA 456
  • MICHAEL MAINA & ANOR vs. STANLEY KIGARA KAGOMBE
    [1996] eKLR
  • SAULO KANDIE vs. JAMES KWAMBAI CHERUIYOT
    [2019] eKLR
  • ASHWANDER vs. TENNESSEE VALLEY AUTHORITY
    297 US 288, 347
  • COMMUNICATIONS COMMISSION OF KENYA & 5 OTHERS vs. ROYAL MEDIA SERVICES LIMITED & 5 OTHERS
    [2014] eKLR
  • BAOBAB BEACH RESORT & SPA LIMITED vs. DUNCAN MURIUKI KAGURU & ANOR
    [2017] eKLR
On appeal from
Environment and Land Court of Kenya at Nakuru
E.L.C Petition No. 35 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1)(a) of the Court of Appeal Rules from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lemita Ole Lemein v Attorney General & 2 others [2020] KECA 303 (KLR)", Case Analysis (2020). Civil Appeal No. 64 of 2016 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/303/eng@2020-10-09

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