Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Appeal No. 9 of 2007 (originally filed at the High Court, Nyeri; transferred to the Environment and Land Court)· [2015] KEELC 530 (KLR)

Jane Wainoi Gathutwa & another v Grace Kaguu Marua & another [2015] KEELC 530 (KLR)

Environment and Land Court of Kenya
8 April 2015
1,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This was an appeal against the award of the Central Division Land Dispute Tribunal, confirmed by the Senior Resident Magistrate's Court Kerugoya by decree dated 5th February 2007, in a dispute over parcel MUTIRA/KAGUYU/433. The appellants, who had claimed before the Tribunal (the first appellant claiming one acre said to belong to her deceased husband), raised ten grounds alleging misconduct by the Tribunal and the magistrate's court and sought to set aside the award and decree and to have the land sub-divided. B.N. Olao J. dismissed the appeal on three independent grounds. First, the Court had no jurisdiction: under the repealed Land Disputes Tribunal Act, an aggrieved party could appeal only to the Provincial Appeals Committee, and thereafter to the High Court on points of law within sixty days; no appeal to the Appeals Committee was shown, and the earlier decision to admit the appeal was made in error. Secondly, the matter was res judicata, the same dispute between the same parties having been concluded by Aganyanya J. in Nairobi High Court Civil Appeal No. 405 of 1993, dismissed on 23rd September 2002. Thirdly, even on the merits the Tribunal was right: being registered land over which title and sub-division were claimed, the Tribunal lacked jurisdiction, as the Court of Appeal held in Jotham Amunavi v Chairman Sabatia Divisional Land Disputes Tribunal, and the magistrate was obliged under Section 7(2) to enter judgment in terms of the award. The appeal was dismissed with costs.

Key legal issues

#
01

Jurisdiction of the Environment and Land Court to hear an appeal from a Land Disputes Tribunal award confirmed by a magistrate's court

Holding

The Court had no jurisdiction; appeal lay only to the Provincial Appeals Committee and thence to the High Court on a point of law.

Reasoning

The dispute was determined under the repealed Land Disputes Tribunal Act. Section 8(1) provided for appeal to the Provincial Appeals Committee within thirty days, and Section 8(8) and (9) allowed a further appeal to the High Court on points of law within sixty days. No evidence showed any appeal to the Appeals Committee. The decision to admit the appeal was made in error, so the appeal had to be dismissed.

p. 3
02

Res judicata

Holding

The appeal was res judicata because the same dispute over the same land had been determined by Aganyanya J. in Nairobi High Court Civil Appeal No. 405 of 1993, dismissed on 23rd September 2002.

Reasoning

The parties in the earlier High Court appeal were the same as those before the Court, the subject matter was the same parcel of land, and the appellant was claiming her deceased husband's share in the land. The earlier appeal had been concluded by a court of competent jurisdiction twelve years earlier and could not be entertained afresh.

p. 3
03

Jurisdiction of the Land Disputes Tribunal over registered land

Holding

The Tribunal correctly declined jurisdiction because the subject matter was registered land and the claim sought sub-division of title.

Reasoning

The appellant sought one acre out of registered parcel MUTIRA/KAGUYU/433. Relying on the Court of Appeal decision in Jotham Amunavi v The Chairman Sabatia Divisional Land Disputes Tribunal & Another, the Court held that a Land Disputes Tribunal has no jurisdiction over disputes relating to title to registered land; awarding the acre would have been an illegal judgment. The magistrate was likewise correct in confirming the award under Section 7(2).

p. 3

Legal principles established

#
  • There was no right of appeal to the High Court (or the Environment and Land Court) from a decision of a Land Disputes Tribunal or from the magistrate's decree confirming such an award; appeal lay only to the Provincial Appeals Committee, and from that Committee to the High Court on points of law within sixty days.
  • A Land Disputes Tribunal had no jurisdiction to hear disputes relating to title to registered land.
  • Under Section 7(2) of the repealed Land Disputes Tribunal Act, the magistrate was obliged to enter judgment in terms of the Tribunal's award and draw a decree accordingly.
  • A matter already determined by a court of competent jurisdiction is res judicata and cannot be entertained afresh.

Court orders

#
  1. 1.The appeal is dismissed with costs.

Authorities

#

Legislation

  • Land Disputes Tribunal Act (repealed)Section 7 and Section 7(2)
  • Land Disputes Tribunal Act (repealed)Section 8(1), 8(8) and 8(9)

Cases cited (1)

  • Jotham Amunavi v The Chairman Sabatia Divisional Land Disputes Tribunal & Another
    Civil Appeal No. 256 of 2002
On appeal from
Senior Resident Magistrate's Court, Kerugoya
Land Dispute Tribunal Award No. 1 of 2007
Jurisdiction invoked
Appeal purportedly brought under the now repealed Land Disputes Tribunal Act; the Court found no right of appeal lay to it from the Tribunal's award or the magistrate's decree.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jane Wainoi Gathutwa & another v Grace Kaguu Marua & another [2015] KEELC 530 (KLR)", Case Analysis (2015). Civil Appeal No. 9 of 2007 (originally filed at the High Court, Nyeri; transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/530/eng@2015-04-08

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