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ELCStruck OutNot stated in judgment· [2017] KEELC 730 (KLR)

Beatrice Umotho v Benard Njagi & 2 others [2017] KEELC 730 (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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Kenya's High Court struck out a land appeal filed before the Embu Appeals Committee had made any decision, confirming courts cannot hear appeals of decisions that don't exist.

What this practically means

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Executive summary

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The High Court at Chuka, per P.M. Njoroge J, dealt with a matter filed before it ostensibly as an appeal from the Embu Provincial Appeals Committee under the defunct Land Disputes Tribunals Act. Upon perusal of the pleadings, the court found it clear that the Embu Provincial Appeals Committee had never finalized the case and therefore had not made any decision. Section 8(9) of the Act permits appeals to the High Court only from decisions of Appeals Committees, and only on a certified point of law; section 8(8) makes Appeals Committee decisions final on questions of fact, while section 8(10) treats customary law questions as questions of fact. The court held that since no decision existed, no appeal could properly be filed and the court lacked jurisdiction. It invoked the celebrated dictum in The MV SS Lilian S that jurisdiction is everything and a court must down tools the moment it finds it lacks jurisdiction, the Supreme Court's holding in Samuel Kamau v Kenya Commercial Bank that jurisdiction flows only from the Constitution or legislation, and the Supreme Court's restatement in Republic v Karisa Chengo quoting Lord Denning in Mcfoy v United Africa Company that proceedings founded on a void act are incurably bad. The court found there was no appeal properly before it, ordered the file removed from the list of pending appeals, and declared the matter disposed of. No costs order was made; the parties were not in court.

Key legal issues

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01

Whether the High Court had jurisdiction over an appeal from a Provincial Appeals Committee that never rendered a decision

Holding

The court had no jurisdiction; appeals lie only against decisions of Appeals Committees, and none existed here

Reasoning

Under section 8(9) of the defunct Land Disputes Tribunals Act, appeals come to the High Court only against decisions of Appeals Committees, and such appeals require certification that a point of law is involved. Since the Embu Provincial Appeals Committee never finalized the case, there was no decision capable of being appealed against. Filing an appeal where no decision existed was void and the matter had to be removed from the list of pending appeals.

p. 1
02

The consequence of proceedings founded on a void act

Holding

Proceedings founded on a void act are a nullity and will collapse

Reasoning

Relying on the Supreme Court's restatement in Petition No. 5 of 2015 (Republic v Karisa Chengo) quoting Lord Denning in Mcfoy v United Africa Company, the court held that where an act is void, it is a nullity and every proceeding founded on it is incurably bad. Entertaining the purported appeal without an underlying decision would be 'putting something on nothing', which produces nothing.

p. 2

Legal principles established

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  • A question of jurisdiction must be raised and decided at the earliest opportunity; without jurisdiction a court cannot take any further step
  • A court can only exercise jurisdiction conferred by the Constitution or written law

Court orders

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  1. 1.Finding that there is no appeal properly before the court
  2. 2.The file to 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), 8(9) and 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 (appeals to the High Court only against decisions of Appeals Committees, certified as involving a point of law)

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, "Beatrice Umotho v Benard Njagi & 2 others [2017] KEELC 730 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/730/eng@2017-12-06

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