Robert Gitau Kimani v Peter Kimani Ngera & 2 others [2015] KEELC 556 (KLR)
The bottom line
#A Kenya court threw out a land-tribunal award over family land because tribunals cannot decide who owns registered land.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial magistrate had jurisdiction to review the decree adopting the Tribunal award
The trial court had jurisdiction under section 80 of the Civil Procedure Act and Order 45 Rule 1 to review its own order adopting the Tribunal award, and erred in holding otherwise
Section 80 of the Civil Procedure Act allows any person aggrieved by a decree or order from which no appeal has been preferred to apply for review to the court which passed it. The order of 28th June 1999 adopting the Tribunal award was made by the trial court and no appeal was filed from it. The magistrate therefore wrongly characterized the review application as a continuation of the dispute and held she had no jurisdiction when the power of review existed in law.
Whether the Tribunal award as adopted was amenable to being set aside
The referral of the dispute to the Tribunal and the adoption of its award were errors on the face of the record and sufficient reason to set aside the orders, as the Tribunal lacked jurisdiction over claims to title of registered land and trust
Section 3(1) of the Land Disputes Tribunal Act limited Tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The suit involved a registered parcel and sought a declaration of trust and subdivision, a title dispute triable only by the High Court or Senior Resident Magistrate's Court. The referral to the Tribunal and adoption of its award were therefore nullities amounting to an error apparent on the face of the record and sufficient reason for review.
Legal principles established
#- The first appellate court's duty is to re-evaluate the evidence in the subordinate court on both points of law and facts and come up with its own findings and conclusions
- A court that passed a decree or made an order from which no appeal has been preferred has power under section 80 of the Civil Procedure Act to review it
- Land Disputes Tribunals under section 3(1) of the Land Disputes Tribunal Act had no jurisdiction over claims to title of registered land or declarations of trust
- The application of customary law by Tribunals under section 3(7) was limited to claims within section 3(1) and was not open ended
Court orders
#- 1.The appeal is allowed
- 2.The decree made on 28th June 1999 and issued on 23rd February 2001 in Nairobi PMCCC No. 10477 of 1994 and all consequential orders made thereafter, including the cancellation of the Appellant's title to, subdivision of, and registration of the Respondents as owners of L.R Limuru/Kamirithu/851 measuring 4.25 acres, are set aside
- 3.Pursuant to sections 3A, 17 and 18 of the Civil Procedure Act and section 13 of the Environment and Land Court Act, the suit in Nairobi PMCCC No. 10477 of 1994 be transferred to the Nairobi Environment and Land Court for priority hearing and determination, and to be given a new Environment and Land Court suit number
- 4.Each party shall bear their own costs of the appeal
- On appeal from
- Chief Magistrate's Court, Nairobi (PMCCC No. 10477 of 1994)
- PMCCC No. 10477 of 1994
- Jurisdiction invoked
- Section 13(1) of the Environment and Land Court Act, in accordance with Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Gitau Kimani v Peter Kimani Ngera & 2 others [2015] KEELC 556 (KLR)", Case Analysis (2015). ELC Civil Appeal No. 12 of 2015 (formerly High Court Civil Appeal No. 451 of 2002; previously docketed as ELC Suit 1497 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/556/eng@2015-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.