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ELCAllowedELC. Appeal No. 1 of 2014· [2017] KEELC 829 (KLR)

Rosemary Tsuma v Livingstone Betty Mukabana [2017] KEELC 829 (KLR)

Environment and Land Court of Kenya at Kakamega
15 November 2017
903 words in judgment
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The bottom line

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A Kenyan court quashed a Land Disputes Tribunal's decision because tribunals cannot decide who owns land—ownership claims belong in the proper courts.

What this practically means

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Executive summary

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This was a first-instance appeal to the Environment and Land Court at Kakamega against the decision of the Lurambi Land Disputes Tribunal in Tribunal Case No. 111 of 2009, delivered on 9 July 2009. The appellant, Rosemary Tsuma, advanced four grounds: that the Tribunal lacked jurisdiction to determine ownership of land under section 3(1) of the defunct Land Disputes Tribunal Act No. 18 of 1990; that it lacked jurisdiction over land forming part of a deceased person's estate; that she was misjoined as she was not the legal representative of the deceased registered owner; and that the respondent's claim was time-barred under the Limitation of Actions Act. She sought that the appeal be allowed and the Tribunal's decision quashed, with costs. The respondent was served but filed no papers and did not attend. The court found that the Tribunal had awarded ownership of Butsotso/Bukura/678 to the respondent as registered owner and ordered cancellation of the title in the name of the late Brown Aleka Tsuma and reissue to the claimant. Following M'Marete v Republic and Masagu Ole Naumo, the court held that the dispute was essentially a claim to title, outside section 3 of the Act, and that proceedings concerning an unrepresented deceased proprietor's land offended the Law of Succession Act. The court allowed the appeal, quashed the Tribunal's decision and awarded costs to the appellant.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over claims to ownership of registered land

Holding

The Tribunal acted in excess of jurisdiction by determining title and ordering cancellation and reissue of a title deed, matters outside section 3 of the Land Disputes Tribunal Act

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The Tribunal instead determined ownership of Butsotso/Bukura/678, ordered cancellation of the title in the name of the deceased and reissue to the claimant. Following M'Marete v Republic, the court held this was a claim to ownership beyond the Tribunal's mandate.

p. 2
02

Determination of a dispute over land forming part of a deceased person's estate without representation

Holding

The Tribunal's proceedings offended the Law of Succession Act because the deceased proprietor's estate was unrepresented when the Tribunal dealt with his title

Reasoning

The registered proprietor was long dead and no letters of administration had been taken out. The court reasoned that the interests of the deceased proprietor or his estate could not be said to have been represented at the Tribunal, so the proceedings prima facie violated the Land Disputes Tribunal Act and the Law of Succession Act. The court also flagged the claim being brought some 20 years after the proprietor's death.

p. 2

Legal principles established

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  • Land Disputes Tribunals were prohibited from determining title to land; a claim to ownership exceeds their statutory mandate under section 3 of the Land Disputes Tribunal Act

Court orders

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  1. 1.The appeal is allowed
  2. 2.The decision/verdict of the Lurambi Land Disputes Tribunal is quashed
  3. 3.Costs to the appellant

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Law of Succession Act
  • Limitation of Actions Act
  • Registered Land Act

Cases cited (2)

  • M'Marete v Republic & 3 others
    Civil Appeal 259 of 2000 [2004] eKLR
  • Masagu Ole Naumo v Principal Magistrate Kajiado Law Courts & another
    JR 370 of 2013 [2014] eKLR
On appeal from
Lurambi Land Disputes Tribunal (first filed at Western Province Provincial Land Disputes Appeals Committee as Appeal No. 81 of 2009)
Tribunal Case No. 111 of 2009
Jurisdiction invoked
Appeal from a Land Disputes Tribunal decision under the defunct Land Disputes Tribunal Act No. 18 of 1990

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Rosemary Tsuma v Livingstone Betty Mukabana [2017] KEELC 829 (KLR)", Case Analysis (2017). ELC. Appeal No. 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/829/eng@2017-11-15

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