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ELCAllowedPetition dated 5th December 2011 (Kisii High Court)· [2016] KEELC 205 (KLR)

Joseph Oginga Onyoni & 2 others v Attorney General & 2 others [2016] KEELC 205 (KLR)

High Court of Kenya
29 July 2016
JMJ. M. Mutungi
3,662 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court voided a land tribunal's award over registered land title, ruling only succession grants give authority to deal with a deceased person's land.

What this practically means

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Executive summary

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The petitioners, registered in 2005 as owners of land parcel South Mugirango/Boikanga/244 following the deaths of the joint registered owners Nyasimi Manyore and Onyoni Manyore, petitioned the High Court to nullify an award of the Nyamarambe Land Disputes Tribunal which had awarded the 3rd respondent a portion of the parcel. The tribunal's award was adopted by the Ogembo magistrate's court in Misc. App. No. 32 of 2011, leading to subdivision of the parcel and registration of the 3rd respondent as owner of the resulting parcel 2618. The petitioners contended the tribunal lacked jurisdiction over title to registered land, contrary to Article 40(2) of the Constitution, and later sought certiorari, cancellation of the new title and injunction. The 3rd respondent opposed, asserting a 1975 purchase of the portion and that the petitioners' own registration bypassed succession. The court framed four issues. It held that the tribunal, confined by section 3(1) of the repealed Land Disputes Tribunals Act to boundary, occupation and trespass disputes, exceeded jurisdiction by determining title; its award was a nullity. Following Macfoy v United Africa Co. Ltd, nothing founded on the void award, including the magistrate's court's adoption and decree, could stand. Further, neither side held letters of administration over the deceased owners' estates; under the Law of Succession Act, only personal representatives may deal with an estate, so the petitioners' 2005 registration was also a nullity and the 3rd respondent lacked locus standi. The petition was allowed: the award, its adoption, the petitioners' registration, the subdivision and the transfer of parcel 2618 were declared null and void, the land registrar was directed to restore the deceased owners on the register pending succession proceedings, and each party was ordered to bear their own costs.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The tribunal acted in excess of jurisdiction by determining ownership and title to parcel 244; its award was null and void.

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 tribunal awarded a portion of parcel 244 to the 3rd respondent, leading to subdivision and transfer, which affected title to registered land - a matter outside its statutory mandate. Award-making on title was therefore ultra vires and a nullity.

p. 4
02

Validity of the magistrate's court adoption of a void award

Holding

The adoption by the Ogembo court and the resultant decree were equally null and void.

Reasoning

Relying on Macfoy v United Africa Co. Ltd and Republic v Chairman Borabu Land Disputes Tribunal, the court reasoned that a void award confers nothing capable of adoption under section 7 of the Act; a judgment and decree entered on a nullity collapse in law.

p. 5
03

Locus standi of parties litigating over estates of deceased persons

Holding

Neither the petitioners nor the 3rd respondent had taken out letters of administration; both lacked capacity, and the petitioners' 2005 registration was itself a nullity.

Reasoning

Under sections 80(2) and 82 of the Law of Succession Act, only a personal representative may enforce causes of action and deal with a deceased's estate. The registered owners had died; the petitioners registered themselves in 2005 without succession proceedings, and the 3rd respondent sued before the tribunal claiming through his late father without a grant. All such actions were without authority and a nullity.

p. 6
04

Relief

Holding

Petition allowed; award, adoption, registrations, subdivision and transfer declared null and void; register to be rectified restoring the deceased registered owners pending succession proceedings.

Reasoning

Since the award and all derivative transactions were nullities, the court declared them void and directed the land registrar to rectify the register, restoring the original deceased owners pending appropriate succession proceedings.

p. 6

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to adjudicate title to registered land; awards touching title are a nullity
  • A null award cannot be adopted as a judgment of a court; proceedings founded on a void act are themselves void
  • Only a duly appointed personal representative has locus standi to deal with or sue on behalf of a deceased person's estate

Court orders

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  1. 1.Declaration that the award dated 24th August 2011 made by the 2nd respondent is null and void
  2. 2.Declaration that the adoption of the award as judgment by Ogembo PM Court vide Misc. App. No. 32 of 2011 and all consequential orders thereof is null and void for all purposes
  3. 3.Declaration that the registration of Joseph Oginga Onyoni, N N (minor) and K N (minor) as owners of land parcel South Mugirango/Boikanga/244 is null and void
  4. 4.Declaration that the subdivision of land parcel South Mugirango/Boikanga/244 to create parcels 2616, 2617 and 2618 and the transfer of parcel 2618 to Reuben Onserio Oyondi are null and void; land registrar directed to rectify the register and restore Onyoni Manyore (deceased) and Nyasimi Manyore (deceased) as registered owners of parcel 244 pending appropriate succession proceedings and/or further orders of the court
  5. 5.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1); Section 4; Section 7
  • Constitution of Kenya, 2010Article 40(2)
  • Law of Succession Act, Cap 160Sections 80(2), 82
  • Land Control ActNot specified
  • Limitation of Actions ActNot specified
  • Registered Land ActNot specified

Cases cited (8)

  • Wilson Wokabi –vs- Josephine Gatheru Njanya
    [2007] eKLR
  • Msambweni Land Disputes Tribunal & Another –vs- Bakari Ali Mwakumanya
    [2014] eKLR
  • Republic –vs- Chairman Land Dispute Tribunal Nambale, ex parte John Okiiru Agwata
    [2010] eKLR
  • Republic, ex parte Peter Nicholas Mautia –vs- Keumbu Land Disputes Tribunal & 2 others
    [2016] eKLR
  • Republic –vs- Chairman Borabu Land Disputes Tribunal & 2 Others ex parte Florence Nyaboke Machani
    [2014] eKLR
  • Macfoy –vs- United African Co. Ltd
    [1961] 3 ALL ER 1169
  • Troustik Union International & Another –vs- Mbeyu & Another
    [1993] eKLR
  • Omari Kaburi –vs- ICDC
    [2007] eKLR
Jurisdiction invoked
Constitutional petition under Article 40(2) of the Constitution (property rights), with judicial review relief (certiorari) sought

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Oginga Onyoni & 2 others v Attorney General & 2 others [2016] KEELC 205 (KLR)", Case Analysis (2016). Petition dated 5th December 2011 (Kisii High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/205/eng@2016-07-29

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