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ELCOtherNot stated in the judgment· [2017] KEELC 1323 (KLR)

Godfrey Njeru Mbiuki & 2 others v Elias Kinyaki M’ndaka & another [2017] KEELC 1323 (KLR)

High Court of Kenya
24 October 2017
PNP.M. Njoroge
723 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 it cannot hear an appeal when the lower committee never made a decision — no decision means no appeal.

What this practically means

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Executive summary

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This was a matter filed in the High Court at Chuka ostensibly as an appeal from the Embu Provincial Appeals Committee under the defunct Land Disputes Tribunals Act. On perusal of the pleadings, the court found that the Embu Provincial Appeals Committee never finalized the case and therefore never made a decision. Under section 8(9) of that Act, appeals lie to the High Court only from decisions of Appeals Committees, on a point of law, within sixty days and subject to certification by a Judge. Since no decision existed, no appeal could properly be filed and the court lacked jurisdiction. Relying on The MV SS Lilian S, the Supreme Court's decision in Samuel Kamau & Another v Kenya Commercial Bank, and Petition No. 5 of 2015 (Republic v Karisa Chengo) quoting Mcfoy v United African Company, the court reiterated that jurisdiction is everything, that a court downs tools the moment it finds it lacks jurisdiction, and that proceedings founded on a void act are a nullity. The court declared that there was no appeal properly before it, directed that the file be removed from the list of pending appeals, and declared the matter disposed of. No costs order was made. The judgment was delivered in open court at Chuka on 24th October 2017 by P.M. Njoroge J.

Key legal issues

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01

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

Holding

No appeal properly lies before the court where the Appeals Committee made no decision; the court lacks jurisdiction

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits appeals to the High Court only from decisions of Appeals Committees on points of law certified by a Judge. Since the Embu Provincial Appeals Committee never finalized the case, there is no decision against which an appeal could be filed. Entertaining the matter would be putting something on nothing, and the court must down tools the moment it finds it lacks jurisdiction.

p. 2

Legal principles established

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  • Jurisdiction must be addressed the moment the court becomes aware of its absence; without jurisdiction a court cannot take any further step
  • A court's jurisdiction derives only from the Constitution or legislation and cannot be assumed beyond what is conferred by law
  • Proceedings founded on a void act are a nullity

Court orders

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  1. 1.Finding that there is no appeal properly before this court
  2. 2.The file to be removed from the list of appeals pending in this court
  3. 3.Declaration that the matter has been disposed of by this court

Authorities

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Legislation

  • Land Disputes Tribunals Act (defunct)Section 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 defunct Land Disputes Tribunals Act - appeals to the High Court lie only against decisions of Appeals Committees on a point of law certified by a Judge

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, "Godfrey Njeru Mbiuki & 2 others v Elias Kinyaki M’ndaka & another [2017] KEELC 1323 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1323/eng@2017-10-24

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