Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal 50 of 2018· [2022] KECA 1117 (KLR)

Liyayi & 2 others v Musoga

Court of Appeal
7 October 2022
3,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

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

#
This unanimous Court of Appeal judgment at Kisumu (Ngugi, M'Inoti and Kiage JJA) allowed a second appeal against the Environment and Land Court's dismissal of the appellants' challenge to a Magistrate's Court decision adopting an award of the Shinyalu Land Disputes Tribunal. The Tribunal had ordered cancellation of the 3rd appellant's title to Isukha/Shinyalu/930 and transfer of the land to the respondent, the widow of the 1st appellant's deceased purchaser. Ngugi JA, writing the leading judgment, held that under section 3(1) of the repealed Land Disputes Tribunals Act, Tribunals were confined to boundary disputes, claims to occupy or work land, and trespass; a claim to ownership and orders cancelling registered titles fell outside their jurisdiction. Following M'Marete v Republic, the award was a nullity ab initio. Although the jurisdictional point had not been raised in any court below, the court held, applying Kenya Ports Authority v Modern Holdings and Adero v Ulinzi Sacco, that jurisdiction may be raised at any stage, even for the first time on appeal or suo motu. Applying Macfoy v United African Co, the adoption of the void award by the Magistrate's Court was itself a nullity and could not be executed. M'Inoti JA concurred with a historical account of the Tribunals' limited jurisdiction, adding further authorities; Kiage JA concurred entirely. The ELC decision was set aside, the award and its adoption declared nullities, and each party ordered to bear their own costs of the appeal.

Key legal issues

#
01

Jurisdiction of the Land Disputes Tribunal over title to land

Holding

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.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunals Act confined Tribunals to boundary disputes, claims to occupy or work land, and trespass.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.

p. 5
02

Raising jurisdiction for the first time on appeal

Holding

The jurisdictional issue could properly be entertained despite not having been raised before the Tribunal, Magistrate's Court or ELC.

Reasoning

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.

p. 5
03

Effect of a null award on subsequent adoption proceedings

Holding

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.

Reasoning

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.

p. 3

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. 1.Appeal allowed
  2. 2.Decision of the Environment and Land Court set aside
  3. 3.Declaration that the Tribunal's award was a nullity ab initio for want of jurisdiction
  4. 4.Declaration that the adoption of the award by the Magistrate's Court was also a nullity and could not be executed
  5. 5.Each party to bear their respective costs of the appeal

Authorities

#

Legislation

  • Land Disputes Tribunals Actsection 3(1)
  • Land Disputes Tribunals Actsection 4
  • Magistrates’ Courts Actcap 10; section 9A
  • Magistrates’ Jurisdiction (Amendment) ActAct No 14 of 1981
  • Statute Law (Miscellaneous Amendment) (No 2) Act1984
  • Environment and Land Court Act2011

Cases cited (11)

  • S K Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    Jurisdiction of tribunals; cited by appellants on Tribunal's jurisdiction

  • Lucy Bosire v Nyankoni Manga Robi
    (2014) eKLR

    Tribunal acted in excess of jurisdiction; relied on by appellants

  • Macfoy v United African Co Ltd
    [1961] 3 ALL ER 1169

    A void act is a nullity; proceedings founded on it are incurably bad

  • M'Marete v Republic & 3 others
    [2004] eKLR

    Tribunal exceeded jurisdiction by awarding registered land; claim was ownership, not boundaries

  • Kenya Ports Authority v Modern Holdings [E.A] Limited
    [2017] eKLR

    Jurisdiction can be raised at any stage, even on appeal or suo motu

  • Adero & Another v Ulinzi Sacco Society Limited
    [2002] 1 KLR 577

    Jurisdiction exists or not ab initio; cannot be conferred by consent or acquiescence

  • All Progressive Grand Alliance (APGA) v Senator Christiana ND Anyanwu & 2 others
    LER [2014] SC 20/2013

    Jurisdiction may be raised at any time, even suo motu, with hearing of parties

  • Asman Maloba Wepukhulu & Another v Francis Wakwabubi Biketi
    CA No 157 of 2001

    Land Disputes Tribunal could not determine title to land

  • Kakamega County Council v Chairman Tiriki East Disputes Tribunal & 3 Others
    [2011] eKLR

    Land Disputes Tribunal could not determine title to land

  • Wachira Wambugu & 2 Others v District Land Disputes Tribunal, Othaya & 3 Others
    [2013] eKLR

    Land Disputes Tribunal could not determine title to land

  • Sir Ali Bin Salim v Shariff Mohamed Shatry
    [1938] KLR 9

    Judgments without jurisdiction are nullities; jurisdiction cannot be conferred by consent

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.