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ELCDismissedNot stated in judgment· [2017] KEELC 952 (KLR)

Gerald Nyaga Marete v Marete Mbabu M’Mbwiria [2017] KEELC 952 (KLR)

High Court of Kenya
30 November 2017
PNP.M. Njoroge
717 words in judgment
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The bottom line

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The High Court in Chuka struck out a land appeal because the Appeals Committee never made a decision, so there was nothing to appeal against.

What this practically means

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Executive summary

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The High Court at Chuka (P.M. Njoroge, J) dealt with a matter filed before it ostensibly as an appeal. On perusal of the pleadings, the court found that the Embu Provincial Appeals Committee never finalized the case and thus never made a decision. Under section 8(9) of the defunct Land Disputes Tribunals Act, an appeal lies to the High Court on a point of law from a decision of the Appeals Committee, subject to certification that an issue of law is involved. The court held that since appeals lie only against decisions of Appeals Committees, no appeal could properly be filed where no decision had been made; consequently the court lacked jurisdiction. Relying on 'The MV SS Lilian S', the court reiterated that jurisdiction must be decided as soon as it becomes apparent and that a court downs tools once it finds it lacks jurisdiction. The court also relied on the Supreme Court's decisions in Samuel Kamau v Kenya Commercial Bank and Republic v Karisa Chengo, quoting Lord Denning in Mcfoy v United African Company to the effect that proceedings founded on a void act are null and incurably bad - entertaining the matter would be putting something on nothing. The court declared that 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. Parties were not in court when the ruling was delivered on 30th November 2017.

Key legal issues

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01

Whether the High Court can entertain an appeal against a decision never made by the Provincial Appeals Committee

Holding

No - appeals under the Land Disputes Tribunals Act lie only against decisions of Appeals Committees; where none was made, 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. Since the Embu Provincial Appeals Committee never finalized the case, there was no decision capable of being appealed against. Filing an appeal in the absence of a decision places the court without jurisdiction, and the court must down tools the moment it becomes aware of that fact.

p. 1

Legal principles established

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  • Jurisdiction must be raised and decided as soon as it becomes apparent; without jurisdiction a court cannot take any further step
  • A court's jurisdiction is conferred only by the Constitution or written law and cannot be self-arrogated
  • Proceedings founded on a void act are themselves null and incurably bad

Court orders

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  1. 1.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), 8(9), 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 (repealed)

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, "Gerald Nyaga Marete v Marete Mbabu M’Mbwiria [2017] KEELC 952 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/952/eng@2017-11-30

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