N G v S W M & another [2016] KEELC 1120 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that Land Disputes Tribunals could not decide land ownership, voiding a Tribunal award that had ordered family land sub-divided.
What this practically means
#Executive summary
#Key legal issues
#Whether the Gichugu Land Disputes Tribunal had jurisdiction to order sub-division of registered land
The Tribunal acted beyond its mandate under Section 3(1) of the repealed Land Disputes Tribunal Act; ordering sub-division of registered land exceeded its jurisdiction, so the award was a nullity.
Section 3(1) of the Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. Ordering sub-division of land registered under the repealed Registered Land Act was a determination of title/ownership, a matter reserved to the High Court under Section 159 of that Act. A long line of Court of Appeal authorities confirms tribunals could not determine title to registered land, and an award made without jurisdiction is a nullity.
Whether the plaintiff is the proprietor of the suit land
Yes; the certificate of search confirms the suit land is still registered in the plaintiff's names and has not been alienated.
The court noted that no evidence was led to show that the suit land had been alienated pursuant to the Tribunal's award and decree. The certificate of search was clear that the land remained registered in the plaintiff's names, and the 1st defendant did not seriously dispute registration; her defence instead pleaded beneficial interest and trust.
Whether the plaintiff, who did not appeal the award and whose judicial review application was dismissed, is nonetheless entitled to declaratory relief
Yes; failure to appeal does not bar a declaratory suit to impeach a null award, since the proper remedy against a judgment or order made without jurisdiction is a declaratory suit.
The court accepted that the plaintiff never appealed the award and his judicial review application was dismissed for want of prosecution. Relying on Nicholas Njeru and Johana Nyokwoyo Buti, it held there is no limit to the power to grant declaratory orders and that a declaratory suit is the proper way to impeach a decision made without jurisdiction. Section 13(7) of the Environment and Land Court Act empowers the court to grant declarations.
Legal principles established
#- A Land Disputes Tribunal had no jurisdiction to determine a dispute relating to title or ownership of registered land.
- An award made without jurisdiction is a nullity, as is the decree that follows from it.
- The proper way of impeaching a judgment or order of a Court or Tribunal which had no jurisdiction is by filing a declaratory suit.
- There is no limit to the powers of the High Court to grant a declaratory order except such limit as it may in its discretion impose upon itself.
Court orders
#- 1.Declaration that the plaintiff is the absolute proprietor of land parcel No. BARAGWI/GUAMA/[particulars withheld]
- 2.Declaration that the Gichugu Land Disputes Tribunal had no jurisdiction to order sub-division and alienation of the suit land
- 3.Declaration that the award of the Gichugu Land Disputes Tribunal and the decree adopted in Kerugoya Senior Resident Magistrate's LDT Case No. 33 of 2007 is null and void ab initio
- 4.Judgment entered for the plaintiff against the defendant as per his plaint
- 5.Each party to meet their own costs
- Jurisdiction invoked
- Section 13(7) of the Environment and Land Court Act (jurisdiction of the Environment and Land Court to grant declarations)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "N G v S W M & another [2016] KEELC 1120 (KLR)", Case Analysis (2016). Not stated in the judgment (Environment and Land Court suit filed 12th May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1120/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.