David Mutua Macenge v Regina Kamenge [2017] KEELC 1309 (KLR)

High Court of Kenya

19 October 2017

PNP.M. Njoroge

717 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~3 min to read original · ~4 min brief

The bottom line

Kenya's High Court struck out an appeal because the lower tribunal never made a decision to appeal against, confirming courts cannot act without jurisdiction.

What this practically means

Executive summary

This was a matter brought to the High Court at Chuka ostensibly as an appeal, but the court discovered upon perusal of the pleadings that the Embu Provincial Appeals Committee had never finalized the case, and therefore had made no decision capable of being appealed. The court examined the defunct Land Disputes Tribunals Act, noting that section 8(9) permits an appeal to the High Court only from a decision of an Appeals Committee on a point of law, within sixty days and subject to certification that an issue of law is involved. Since no decision had been made, no appeal could properly be filed, and the court held it lacked jurisdiction. Relying on the celebrated decision in The MV SS Lilian S, Justice P.M. Njoroge reiterated that the question of jurisdiction must be addressed the moment the court becomes aware of it, that jurisdiction is everything, and that a court must down tools once it finds it has no jurisdiction. The court also invoked the Supreme Court's decision in Samuel Kamau Macharia v Kenya Commercial Bank that jurisdiction flows only from the Constitution or legislation, and quoted Lord Denning in Macfoy v United Africa Company (as adopted in Karisa Chengo) that proceedings founded on a void act are themselves bad and incurably bad - entertaining the matter would be putting something on nothing. The court declared that no appeal was properly before it, ordered the file removed from the list of pending appeals, and declared the matter disposed of. No costs order was made. Both parties were absent at delivery.

Key legal issues

Jurisdiction of the High Court over an appeal where the Appeals Committee never made a decision

Holding

The High Court lacks jurisdiction; appeals under the Land Disputes Tribunals Act lie only against decisions of Appeals Committees, and none had been made

Reasoning

Section 8 of the Land Disputes Tribunals Act permits appeals to the High Court only against decisions of Appeals Committees on points of law, subject to certification. Since the Embu Provincial Appeals Committee never finalized the case, there was no decision capable of appeal, and the filing was a nullity. The court could not entertain it.

p. 1

The duty of a court to deal with jurisdiction immediately

Holding

A court seized of a matter must decide jurisdiction right away and down tools once it finds it lacks jurisdiction

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S' and the Supreme Court in Samuel Kamau Macharia v KCB, the court held that jurisdiction goes to the heart of the matter, is not a question of procedural technicality, and must be addressed the moment it arises, on the material before it.

p. 1

Legal principles established

A court must address jurisdiction the moment it becomes aware of the issue, and must not take any further step where jurisdiction is lacking
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 a nullity

Court orders

1.Declared that there is no appeal properly before the court for want of jurisdiction
2.Ordered that the file be removed from the list of appeals pending in the court
3.Declared that the matter has been disposed of by the court

Authorities

Legislation

Land Disputes Tribunals Act (defunct)Section 8(8)
Land Disputes Tribunals Act (defunct)Section 8(9)
Land Disputes Tribunals Act (defunct)Section 8(10)

Cases cited (3)

Samuel Kamau & Another versus Kenya Commercial Bank and Two Others
Sup. Ct. Civil Application No. 2 of 2011
Republic v 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; not stated
Jurisdiction invoked: Section 8(9) of the Land Disputes Tribunals Act (repealed) - appeal lies to the High Court only from a decision of an Appeals Committee on a point of law, certified as involving an issue of law

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "David Mutua Macenge v Regina Kamenge [2017] KEELC 1309 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1309/eng@2017-10-19

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