Liyayi & 2 others v Musoga
The bottom line
#Kenya's Court of Appeal ruled that Land Disputes Tribunals had no power to decide land ownership, so any award cancelling or transferring a land title is void and unenforceable.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over title to land
The Tribunal acted in excess of its jurisdiction in ordering cancellation of the 3rd appellant's title and transfer of the land; its award was a nullity ab initio.
Section 3(1) of the repealed Land Disputes Tribunals Act confined Tribunals to boundary disputes, claims to occupy or work land, and trespass. The respondent's claim sought orders relating to title to Isukha/Shinyalu/930, a claim to ownership. Following M'Marete v Republic, the Tribunal went beyond its jurisdiction in awarding registered land, rendering its decision void.
Raising jurisdiction for the first time on appeal
The jurisdictional issue could properly be entertained despite not having been raised before the Tribunal, Magistrate's Court or ELC.
Relying on Kenya Ports Authority v Modern Holdings and Adero v Ulinzi Sacco, the court held jurisdiction either exists or does not ab initio, cannot be conferred by consent or acquiescence, and may be raised at any stage, even on appeal or suo motu by the court, provided parties are heard.
Effect of a null award on subsequent adoption proceedings
The Magistrate's Court's adoption of the void award was itself a nullity and could not be executed to compel transfer of the land to the respondent.
Applying Lord Denning's dictum in Macfoy v United African Co, proceedings founded on a void act are themselves bad and incurably bad. Since the Tribunal's award was a nullity, the adoption by the Magistrate's Court could not breathe validity into it, and execution was impermissible.
Legal principles established
#- Land Disputes Tribunals under the repealed Land Disputes Tribunals Act had no jurisdiction to adjudicate ownership of land or to cancel or order transfer of registered titles.
- A question of jurisdiction may be raised at any stage of proceedings, even for the first time on appeal, and even by the court suo motu.
- An award made without jurisdiction is a nullity ab initio, and every proceeding founded on it, including its adoption by a court, is equally a nullity.
Court orders
#- 1.Appeal allowed
- 2.Decision of the Environment and Land Court set aside
- 3.Declaration that the Tribunal's award was a nullity ab initio for want of jurisdiction
- 4.Declaration that the adoption of the award by the Magistrate's Court was also a nullity and could not be executed
- 5.Each party to bear their respective costs of the appeal
- On appeal from
- High Court of Kenya at Kakamega (Environment and Land Court)
- Kakamega ELC Appeal No. 7 of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework; the judgment does not cite a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Liyayi & 2 others v Musoga", Case Analysis (2022). Civil Appeal 50 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1117/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.