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ELCAllowed· [2017] KEELC 992 (KLR)

Charles Kariithi Warui v Mary Wangu Ndandu [2017] KEELC 992 (KLR)

High Court of Kenya
6 November 2017
LWL N Waithaka
1,411 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 confirmed Land Disputes Tribunals cannot decide who owns registered land, so any tribunal order transferring a title is void.

What this practically means

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Executive summary

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This was a first-instance appeal to the High Court at Nyeri under Section 8(9) of the repealed Land Disputes Tribunal Act against the award of the Land Disputes Appeals Committee, Central, read on 3rd November 2010, which upheld the Mathira District Lands Tribunal's direction that parcel Iriani/Kairia/234, registered in the appellant's name, be transferred to Mary Wangu Ngando as the 'rightful heir of the land', with her children entitled to occupy it. The award was adopted by the Senior Resident Magistrate. The appeal was disposed of by written submissions. Two issues arose: competence for late filing, and the Tribunal's jurisdiction. On the first, the court overruled the time-bar objection, holding that the right of appeal accrues when judgment is read, not when the award is made, drawing on Chege Macharia v. Francis Kimani Kirimira and Benson Maina Thiongo v. Joseph Waweru Mwangi. On the second, the court found that the dispute was in substance about ownership of registered land, which Section 3 of the repealed Act does not empower Tribunals to determine. Adopting Joseph Malakwen Lelei, the court held the Tribunal and Appeals Committee acted without jurisdiction, such orders being null and void. The appeal was allowed as prayed on 6th November 2017. No costs order was recorded. The respondent, while conceding the lack of jurisdiction to order transfer, had argued for the validity of the invitation to occupy, invoking equity; the court's jurisdictional finding disposes of the award as a whole.

Key legal issues

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01

Time bar - whether the appeal was filed out of time under Section 8(1) of the LDTA

Holding

The objection on the time bar was overruled; the right of appeal accrues when judgment is read, and the court and elders notified the parties of their right of appeal at that point.

Reasoning

Although Section 8(1) of the LDTA (repealed) required an appeal within 30 days, the court took judicial notice of the practice whereby elders and the court notified parties of the right of appeal only after judgment was read. Relying on Chege Macharia v. Francis Kimani Kirimira and Benson Maina Thiongo v. Joseph Waweru Mwangi, the court held that the right of appeal accrues after judgment is read and that the statutory timelines do not extinguish the right of appeal to the appeals committee and thence to the High Court.

p. 3
02

Whether the Land Disputes Tribunal had jurisdiction over a dispute touching on title to registered land

Holding

The Tribunal lacked jurisdiction because the dispute turned on ownership of registered land, a matter excluded by Section 3 of the LDTA (repealed).

Reasoning

The dispute before the Tribunal was in substance about ownership of the registered parcel Iriani/Kairia/234: the respondent claimed to be the rightful owner entitled to eject the appellant, while the appellant relied on his registration. Section 3(1) of the LDTA (repealed) confines Tribunals to boundary disputes, claims to occupy or work land, and trespass. Adopting Joseph Malakwen Lelei and Benson Maina Thiongo, the court held that an award ordering transfer of title was made without jurisdiction and is null and void.

p. 4

Legal principles established

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  • Land Disputes Tribunals established under the repealed Land Disputes Tribunal Act have no jurisdiction to determine title to or ownership of registered land.
  • The right of appeal accrues after the judgment is read, not after the date of the award.

Court orders

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  1. 1.The appeal is allowed as prayed
  2. 2.Implication: the award of the Appeals Committee upholding the Mathira District Lands Tribunal (ordering transfer of Iriani/Kairia/234 to the respondent) falls away as the Tribunal acted without jurisdiction

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Land Disputes Tribunal Act (repealed)Section 3
  • Land Disputes Tribunal Act (repealed)Section 7(1) and (2)
  • Land Disputes Tribunal Act (repealed)Section 8(1)
  • Land Disputes Tribunal Act (repealed)Section 8(9)

Cases cited (3)

  • Joseph Malakwen Lelei & Another V. Rift Valley Land Dispute Appeals Committee & 2 others
    (2014) eKLR
  • Benson Maina Thiongo V. Joseph Waweru Mwangi
    (2006) eKLR
  • Chege Macharia v. Francis Kimani Kirimira
    (2015) eKLR
On appeal from
Land Disputes Appeals Committee, Central (upholding the Mathira District Lands Tribunal), with the award adopted by the Senior Resident Magistrate's court
not stated in the judgment
Jurisdiction invoked
Appeal under Section 8(9) of the Land Disputes Tribunal 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, "Charles Kariithi Warui v Mary Wangu Ndandu [2017] KEELC 992 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/992/eng@2017-11-06

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