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Court of AppealDismissedCivil Appeal No 156 of 2017· [2022] KECA 94 (KLR)

Gitau & 2 others v Chesire & 35 others (Civil Appeal 156 of 2017) [2022] KECA 94 (KLR)

Court of Appeal
4 February 2022
WKW. KaranjaASAsike-MakhandiaSKS. ole Kantai
2,748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that Land Disputes Tribunals could not decide land ownership or cancel title deeds, so any such awards are void.

What this practically means

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Executive summary

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This was an appeal against the judgment of the Environment and Land Court at Nyahururu (Oundo J.) delivered on 28th June 2017, which allowed an unopposed constitutional petition by purchasers of parcels subdivided from NYANDARUA/SOUTH-KINANGOP/688. The trial court found that the South Kinangop District Land Disputes Tribunal in Case No. 77 of 2008, whose award was adopted as judgment in Nyahururu Principal Magistrate's Court Land Dispute Case No. 1 of 2012, had neither jurisdiction to determine ownership of registered land and cancel titles nor observed natural justice, since the purchasers were condemned unheard. The tribunal award and the resulting decree were quashed and the purchasers reinstated as registered proprietors. Before the Court of Appeal, the appellants raised service and fair-hearing complaints. The Court framed jurisdiction as the threshold issue and, relying on Owners of the Motor Vessel 'Lillian S' and Marete v Republic, held that Land Disputes Tribunals had no jurisdiction to determine ownership of land or to cancel or direct cancellation of title deeds; the tribunal's acts were ultra vires, unlawful and void ab initio. It followed that the magistrate erred in adopting the award, and hearing the parties on the facts could not have altered the legal outcome. The Court of Appeal dismissed the appeal, affirmed the ELC decision, and awarded costs to the respondents.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal under Section 3(1) of the Land Disputes Tribunal Act, 1990

Holding

The tribunal had no jurisdiction to determine ownership of land or to cancel title deeds; in doing so it acted ultra vires and its award was void ab initio

Reasoning

Section 3(1) of the repealed Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. Determining ownership and ordering cancellation of registered titles fell outside that mandate. Citing Owners of the Motor Vessel 'Lillian S' and Marete v Republic, the Court held the tribunal's acts ultra vires, unlawful and tainted with illegality, void ab initio and fit to be set aside ex debito justitiae.

p. 5
02

Whether the appellants' right to be heard was breached in the proceedings below

Holding

Once the tribunal's want of jurisdiction was established, the remaining issues, including allegations of being condemned unheard, became superfluous

Reasoning

The Court framed jurisdiction as the threshold issue; if the tribunal lacked jurisdiction, all else fell away. Hearing the parties on the facts could not have changed the legal position that the award was a nullity. The trial Judge correctly declined to dwell on the other issues since jurisdiction is the foundation of all proceedings without which the entire process is null and void.

p. 5

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to determine ownership of registered land or to order cancellation of title deeds; any such orders are void ab initio
  • Jurisdiction is foundational; a court or tribunal without jurisdiction must down its tools and its products are nullities

Court orders

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  1. 1.Appeal dismissed
  2. 2.Decision of the Environment and Land Court delivered on 28th June 2017 affirmed
  3. 3.Costs awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1) & (3)
  • Constitution of Kenya, 2010Article 43(1)(b)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50(1)
  • Land Disputes Tribunal Act, 1990 (repealed)Section 3(1)
  • Registered Land ActNot specified

Cases cited (2)

  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Marete vs Republic & 3 others
    [2004] eKLR
On appeal from
Environment and Land Court, Nyahururu
Petition No. 9 of 2017
Jurisdiction invoked
First appeal / appeal from the Environment and Land Court under the applicable appellate provisions (not expressly cited in the judgment)

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, "Gitau & 2 others v Chesire & 35 others (Civil Appeal 156 of 2017) [2022] KECA 94 (KLR)", Case Analysis (2022). Civil Appeal No 156 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/94/eng@2022-02-04

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