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Court of AppealDismissedNotice of motion dated 4th July 2022 (Civil Application, Nairobi)· [2024] KECA 1289 (KLR)

Muriithi & another v Muriithi (Civil Application E052 of 2022) [2024] KECA 1289 (KLR)

Court of Appeal of Kenya
20 September 2024
WKW. KaranjaJMJamila MohammedLKL. Kimaru
2,365 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt execution of a land judgment, confirming that Land Disputes Tribunals never had power to decide ownership of registered land.

What this practically means

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Executive summary

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The applicants, Beth Wanjira Muriithi and Agnes Waguthii Wachira, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the decree in Kerugoya ELC No. 521 of 2013, in which the Environment and Land Court on 13th May 2022 declared a Land Disputes Tribunal award and its adoption by the Magistrate's Court null and void for want of jurisdiction, leading to cancellation of two title deeds. The applicants argued they had an arguable appeal with high chances of success, that execution would render the appeal nugatory, and that they were elderly and unable to refund purchase monies paid over a decade earlier. The respondent opposed, contending there was nothing to stay, the decree had already been registered, the application was late, the applicants had sold the properties to third and fourth parties who were not joined, and the notice of appeal was itself incompetent. Applying the settled twin principles for Rule 5(2)(b) applications - arguability and nugatory-ness - the Court held that the intended appeal was not arguable, since it turned on ownership of registered land, a matter outside the jurisdiction of Land Disputes Tribunals, on which the Court had authoritatively pronounced in the Dominica Wamuyu Kihu and Joseph Malakwen Lelei cases. Having failed the first limb, the applicants did not need to address the nugatory limb. The Court dismissed the application with costs to the respondent.

Key legal issues

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01

Test for stay of execution pending appeal under Rule 5(2)(b)

Holding

The jurisdiction is discretionary and guided by the interests of justice; the applicant must show the appeal is arguable and that it will be rendered nugatory absent stay, satisfying both limbs.

Reasoning

The Court restated the twin principles from Trust Bank Limited v Investech Bank Limited and Republic v Kenya Anti-Corruption Commission. Since the applicants failed the first limb (arguability), the Court did not reach the nugatory limb. The application therefore failed to meet the threshold for stay of execution pending the intended appeal against the ELC judgment.

p. 3
02

Whether the intended appeal was arguable on the Tribunal's jurisdiction over ownership of registered land

Holding

The intended appeal was not arguable because this Court has authoritatively and conclusively held that Land Disputes Tribunals lacked jurisdiction over ownership of registered land.

Reasoning

The ELC had declared the Tribunal award and its adoption by the Magistrate's Court null and void for lack of jurisdiction, following Dominica Wamuyu Kihu and Joseph Malakwen Lelei. The applicants' intended appeal turned on ownership of the suit properties, a matter squarely outside the Tribunal's statutory jurisdiction under section 3 of the Land Disputes Tribunal Act. The Court declined to revisit settled authority.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs of the twin principles - that the appeal is arguable and that it will be rendered nugatory absent stay; failure on one limb is fatal.
  • A Land Disputes Tribunal had no jurisdiction to determine issues of ownership of or title to registered land under the Registered Land Act, and proceedings flowing from such a determination are null and void.

Court orders

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  1. 1.Dismissal of the notice of motion dated 4th July 2022
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rules, 2010 (now Court of Appeal Rules, 2022)Rule 5(2)(b)
  • Court of Appeal Rules, 2010 (now Court of Appeal Rules, 2022)Rule 47
  • Court of Appeal Rules, 2010 (now Court of Appeal Rules, 2022)Rule 75(2) (now Rule 77(2))
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Registered Land Act Cap 300 (repealed)
  • Land Disputes Tribunal Act (repealed)Section 3(1)

Cases cited (8)

  • Trust Bank Limited and Another v. Investech Bank Limited and 3 Others
    [2000] eKLR
  • Dominica Wamuyu Kihu vs. Johana Ndura Wakaritu
    [2012] eKLR
  • Joseph Malakwen Lelei & Another vs. Rift Valley Disputes Appeals Committee & 20 Others
    [2014] eKLR
  • Republic v Kenya Anti-Corruption Commission & 2 others
    (2009) KLR 31
  • Reliance Bank Ltd v Norlake Investments Limited
    (2012) 1 EA 227
  • Macfoy v. United Africa Co. Ltd
    1961 3 All ER 1169
  • Re Continental Credit Finance Ltd
    [2003] 2 EA 399
  • Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Limited
    (1989) KLR 1
On appeal from
Environment and Land Court
Kerugoya High Court ELC No. 521 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010 (now Court of Appeal Rules, 2022)

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, "Muriithi & another v Muriithi (Civil Application E052 of 2022) [2024] KECA 1289 (KLR)", Case Analysis (2024). Notice of motion dated 4th July 2022 (Civil Application, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1289/eng@2024-09-20

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