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ELCOtherNot stated in the judgment· [2017] KEELC 613 (KLR)

Taratisio M Gakira & 2 others v Delfino Kinyua Gakira & another [2017] KEELC 613 (KLR)

High Court of Kenya
6 December 2017
PNP. M. Njoroge
717 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 struck out a land dispute appeal because the Appeals Committee never made a decision for anyone to appeal against.

What this practically means

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Executive summary

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This was a matter filed in the High Court at Chuka, ostensibly as an appeal, but the parties were not named in the judgment and no case number is recorded. On perusal of the pleadings the court found that the Embu Provincial Appeals Committee never finalised the case, meaning there was no decision from which an appeal could lie. Section 8(9) of the Land Disputes Tribunals Act permits an appeal to the High Court on a point of law, within sixty days and with certification that an issue of law is involved, only from a decision of the Appeals Committee. Since no decision existed, the court held that it lacked jurisdiction. Relying on The MV SS Lilian S on the duty to determine jurisdiction at the earliest opportunity, the Supreme Court's decision in Samuel Kamau & Another v Kenya Commercial Bank on jurisdiction being conferred only by the Constitution or written law, and the Karisa Chengo decision quoting Mcfoy v United Africa Company on the nullity of void acts, the court held that entertaining the matter would be putting something on nothing. It found no appeal properly before it, ordered the file removed from the list of pending appeals, declared the matter disposed of, and made no costs order. The observation was made that the matter might find a forum if the legislature later provided one.

Key legal issues

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01

Whether an appeal can lie to the High Court where the Appeals Committee made no decision

Holding

No. Appeals under the Land Disputes Tribunals Act lie only against decisions of Appeals Committees; absent a decision, the court lacks jurisdiction.

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits an appeal to the High Court on a point of law from a decision of the Appeals Committee, certified to involve an issue of law. The Embu Provincial Appeals Committee never finalised the case, so there is no decision to appeal from. Filing an appeal where no decision exists confers no jurisdiction; entertaining it would be putting something on nothing.

p. 1

Legal principles established

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  • Jurisdiction must be addressed the moment it arises; without it a court cannot take any further step
  • A court's jurisdiction is confined to what the Constitution or written law confers
  • Proceedings founded on a void act are a nullity

Court orders

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  1. 1.A finding that there is no appeal properly before the court
  2. 2.That the file be removed from the list of appeals pending in the court
  3. 3.Declaration that the matter has been disposed of by the court

Authorities

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Legislation

  • Land Disputes Tribunals ActSection 8(8)
  • Land Disputes Tribunals ActSection 8(9)
  • Land Disputes Tribunals ActSection 8(10)

Cases cited (3)

  • Samuel Kamau & Another versus Kenya Commercial Bank and Two Others
    Sup. Ct. Civil Application No. 2 of 2011
  • Republic versus Karisa Chengo and two others
    Petition No. 5 of 2015
  • Benjamin Leonard Mcfoy United African Company Limited (UK)
    [1962] AC 152
On appeal from
Embu Provincial Appeals Committee
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunals Act (appeal to the High Court on a point of law from a decision of the Appeals Committee)

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, "Taratisio M Gakira & 2 others v Delfino Kinyua Gakira & another [2017] KEELC 613 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/613/eng@2017-12-06

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